Unpublished Disposition, 881 F.2d 1085 (9th Cir. 1985)

MEMORANDUM^** 

Herbert Williams appeals from his conviction for delay and embezzlement of the mail in violation of 18 U.S.C. §§ 1703(a) and 1709. Williams contends that the district court erred by (1) admitting evidence of his prior delays and embezzlement of mail, and (2) inadequately instructing the jury about the limited purpose of the prior act evidence. We affirm.

* Unbeknownst to Williams, on December 10, 1985, postal inspectors placed a "test" letter containing $10 in currency and a silver dollar before Williams for processing. The alleged delay and embezzlement of the silver dollar by Williams on December 10 form the basis of the charges brought against him.

Prior to trial, the government sought to introduce evidence that (1) on December 3, 1985, Williams was observed by the postal inspectors tearing open two pieces of mail, placing one piece of mail in his apron and then into his pocket, and a short while later going to the restroom; and (2) on December 4, 1985, Williams was seen putting mail into his pocket and then proceeding to the restroom. Williams filed a motion in limine to preclude the government from using this evidence at trial.

Following a pretrial hearing, the district court denied Williams' motion because it found that these other acts were similar, close in time, supported by clear and convincing evidence, and that their probative value outweighed the prejudicial effect. The district court did not specify at that time, however, a particular Rule 404(b) purpose for which it was admitting the evidence.

Before the prior act testimony of Inspector Sturdevant at trial, the district court stated that Sturdevant's testimony was permissible only on the question of motive, design, or plan and not to show Williams' acts on December 10th. Before the prior act testimony of Inspector Kletter, the district court stated that evidence of prior similar acts is admissible to show "intent, motive, design, plan or so forth, but not on the merits of whether the thing was done on December 10." Williams did not object to either of these cautionary instructions.

At the conclusion of trial, the district court instructed the jury that " [e]vidence that an act was done at one time, or on one occasion, is not any evidence or proof whatever that a similar act was done at another time, or on another occasion." The court stated, however, that the jury could consider the evidence as to an earlier act of a like nature "in determining the state of mind or intent with which the accused did the act charged in the particular count." Finally, the court instructed the jury that it was permitted, but not obliged, to infer from proof of the earlier act that "in doing the act charged in the particular count under deliberation, the accused acted willfully and with specific intent, and not because of mistake or accident or other innocent reason." The jury found Williams guilty on both counts.

II

We review a district court's decision to admit evidence under Fed.R.Evid. 404(b) for an abuse of discretion. United States v. Catabran, 836 F.2d 453, 459 (9th Cir. 1988). We also review the district court's balancing of the probative value of the evidence against its prejudicial harm under Fed.R.Evid. 403 for an abuse of discretion. United States v. Rubio, 727 F.2d 786, 798 (9th Cir. 1983).

Although we review a challenge to the language or formulation of a particular jury instruction under the abuse of discretion standard, United States v. Benny, 786 F.2d 1410, 1416 (9th Cir.), cert. denied, 479 U.S. 1017 (1986), "when no specific objection is made to an instruction, the alleged error cannot be reviewed on appeal, except in those very narrow circumstances denominated as plain error." Id..

III

Federal Rule of Evidence 404(b) is an inclusionary rule that allows a court to admit evidence of a defendant's prior acts for purposes other than to prove character or criminal propensity; such evidence may be admitted to prove motive, intent, or knowledge. Catabran, 836 F.2d at 459. Evidence of a prior act is admissible if: (1) the prior act was similar and not too remote in time to the charged offense; (2) the evidence was introduced to prove an element of the charged offense; and (3) the probative value of the evidence outweighed any prejudice to the defendant. Id. Additionally, there must be sufficient evidence from which a reasonable jury could conclude by a preponderance of the evidence that the defendant committed the similar act. Huddleston v. United States, 108 S. Ct. 1496, 1501 (1988).

Williams contends that the district court erred in admitting evidence of his prior delay and embezzlement of mail because (1) the court never stated what contested issue the evidence was relevant to, and the government did not clearly articulate the relevance of Williams' similar acts; (2) the similar acts were unrelated, isolated incidents which cannot be used to demonstrate intent for spontaneous offenses, such as the crime charged; (3) the prejudicial effect of the evidence outweighed its probative value; and (4) the district court inadequately instructed the jury on the limited purpose for which the prior act evidence was admitted.

* Williams correctly asserts that "the government 'must precisely articulate the evidential hypothesis by which a fact of consequence may be inferred from other acts evidence.' " United States v. Alfonso, 759 F.2d 728, 739 (9th Cir. 1985) (quoting United States v. Mehrmanesh, 689 F.2d 822, 830 (9th Cir. 1982)). Williams does not, however, cite any authority holding that the district court, in an in limine proceeding, must specify the contested issue(s) to which the similar act evidence was relevant. To the contrary, this court has held that " [e]vidence is deemed admissible under Rule 404(b) on appeal if it is admissible on any ground [citations omitted] ... It is unnecessary to specify the exception within which a particular line of inquiry or piece of evidence is admissible. It is enough that the evidence is relevant to an issue in the case other than a defendant's criminal propensity." United States v. Green, 648 F.2d 587, 592 (9th Cir. 1981) (per curiam); accord, United States v. Faust, 850 F.2d 575, 584 (9th Cir. 1988).

We believe the district court¹  and the government have adequately explicated a theory of admissibility for the prior act evidence. Appellant concedes that the issue of Williams' intent on December 10 was contested at trial.²  The prior act evidence was relevant to show that Williams' concealment of mail material on December 10 was done with criminal intent and knowledge and not by mistake or accident or for another innocent reason.

B

Williams next contends that the similar acts were unrelated, isolated incidents which cannot be used to demonstrate intent for spontaneous offenses, such as the crime charged. This contention also fails.

The cases upon which Williams relies, United States v. Bettencourt, 614 F.2d 214 (9th Cir. 1980) and United States v. San Martin, 505 F.2d 918 (5th Cir. 1974), are inapposite. Bettencourt and San Martin were assault prosecutions in which the prior and charged acts were, respectively, 2 and 4-10 years apart.³  Here, in contrast, the prior acts were closely related in time and substance to the offenses with which Williams was charged. Both the prior and subsequent acts involved the illegal opening of mail and pocketing of its contents at Williams' workstation over a period of less than two weeks. Unlike assault, moreover, embezzlement is not ordinarily a spontaneous type of event. See Bettencourt, 614 F.2d at 217 ns. 6 and 7.

Williams' reliance on United States v. Beechum, 555 F.2d 487 (5th Cir. 1977), vacated, 582 F.2d 898 (5th Cir. 1978), cert. denied, 440 U.S. 920 (1979), is similarly misplaced. Beechum permits extrinsic evidence of acts that are less similar to the charged offenses than the evidence of acts that are less similar to the charged offenses than the evidence admitted here to demonstrate criminal intent. Id. 582 F.2d at 905 (en banc panel vacated earlier opinion, affirmed conviction, and held that two credit cards unrelated to the "test letter" and bearing names other than Beechum's were properly admitted on the issue of Beechum's intent to possess the "test letter" silver dollar unlawfully).

C

Under Fed.R.Evid. 403, evidence of a relevant prior act should be excluded if its prejudicial effect substantially outweighs its probative value because it portrays a defendant as a "bad" person or has the potential to confuse or mislead a jury. United States v. McCollum, 732 F.2d 1419, 1424 (9th Cir.), cert. denied, 469 U.S. 920 (1984). However, exclusion of relevant evidence to avoid unfair prejudice is an extraordinary remedy to be used sparingly, United States v. Patterson, 819 F.2d 1495, 1505 (9th Cir. 1987), and in balancing probative value against possible prejudice, the court must consider the need for the prior act evidence to prove a particular point, such as intent. United States v. Morris, 827 F.2d 1348, 1350 (9th Cir. 1987), cert. denied, 108 S. Ct. 726 (1988).

Here, there was a need for evidence proving Williams' intent to delay and embezzle the mail because Williams' defense was that he was holding the silver dollar until he could give it to his supervisor. The evidence of Williams' previous interference with the mail, moreover, is not inflammatory or outrageous. The district court did not abuse its discretion in admitting the prior act evidence.

D

Appellant's final contention, that the instructions were inadequate to advise the jury of the limited admissibility of the prior act evidence, is without merit. Williams did not object to the cautionary instructions which preceded the testimony of Inspectors Sturdevant and Kletter, and our review of the record simply does not reveal that the district court committed plain error in instructing the jury.

In the first place, the district court's cautionary instructions were substantially correct. See Benny, 786 F.2d at 1416 (trial judge is given substantial latitude in tailoring instructions so long as they fairly and adequately cover the issues). Significantly, all of the court's instructions regarding the prior act evidence adequately expressed the critical limitation on the use of such evidence--that it was not to be considered proof of criminal character or of acts in conformity with a criminal disposition. See Fed.R.Evid. 404(b). Moreover, the district court, in the cautionary instruction given before Inspector Kletter testified about the acts of December 3 and 4, specifically declared that this prior act evidence was admissible on the contested issue of "intent."

Finally, the district court's general charge to the jury properly informed them that (1) Williams was not charged with the previous delay and embezzlement of mail, and (2) the evidence concerning the previous acts was only to be considered on the issue whether the defendant intended to delay or embezzle mail on December 10, 1985, and for no other purpose. These subsequent general jury instructions cured any possible defect in the cautionary instructions. See United States v. Soulard, 730 F.2d 1292, 1302 (9th Cir. 1984) (broad prior act general jury instruction--defendant not on trial for any conduct other than that allowed in indictment--cured any possible prejudicial effect of evidence, even where no immediate limiting instruction was given), cert. denied, 449 U.S. 832 (1980). We conclude that the district court did not plainly err in instructing the jury regarding the admissibility of the prior act evidence in this case.

For all the foregoing reasons, the judgment of conviction is AFFIRMED.