BOWEN, District Judge.
Appellant, John William Whaley, was engaged in repossessing for the seller or mortgagee automobiles and boats held by the purchaser or mortgagor in violation of the sale or mortgage contract.
He was charged in a one-count indictment under 18 U.S.C. § 912 with having in his work impersonated an agent of the F.B.I., to which charge he pleaded not guilty, was convicted in a jury trial and was sentenced by the Trial Court to three years imprisonment with execution of sentence suspended and probation for five years ordered.
The Trial Court under 18 U.S.C. § 3231 had, and this Court under 28 U.S.C. §§ 1291 and 1294 has, jurisdiction.
On this appeal, appellant's assigned errors in effect are: (1) That the evidence was insufficient to sustain the verdict; (2) That the Trial Court erred in admitting evidence of prior similar acts which were remote, incompetent and prejudicial; (3) That the Trial Court erred in giving to the jury erroneous instructions prejudicial to appellant; and (4) That the Trial Court erroneously imposed improperly restrictive conditions of probation upon appellant.
As shown by the record and appellee's brief, to support the charges of the indictment,
That, thereupon, Reedy asked appellant for his credentials; that appellant handed Reedy a leather folder in which he observed a gold badge, the details of which he did not remember, and a card of about 2½" × 3½" in which appellant's picture appeared in the lower left hand corner; that the card also had appellant's name, address, height and color of eyes typed in, and at the bottom of the card were the words "Federal Bureau of Investigation"; that the card appellant showed to Reedy on March 13, 1962 was not Exhibit 1, but was similar to it; that appellant asked Reedy if he and his wife knew they could get into trouble by withholding information; that while Reedy had in his hands the card shown him by appellant on March 13, 1962, Reedy told his wife that "the gentleman was from the FBI and that we might as well tell him, because regardless he was going to find out"; that in response to that statement, appellant said nothing; that Mrs. Reedy then took from her husband the folder presented by appellant, looked at it, returned it to appellant and then left the room and obtained a letter which had Mr. Durbin's post office box address on it which she then related to appellant; that when Reedy requested his wife to obtain that information for appellant, Reedy believed appellant was an FBI agent, and Reedy would not have requested or allowed this information to be given to appellant had he not had that belief.
Mrs. Reedy testified that she heard her husband, Mr. Reedy, say appellant was an FBI agent; that she then went and found a letter from her father, Mr. Durbin, having his address on it and gave it to appellant, and that she would not have given appellant that information if she had not believed he was an FBI agent, although she said she did not read the card and did not observe on it the words "Federal Bureau of Investigation", but that she took her husband's word for that. Mrs. Reedy also corroborated much of her husband's testimony.
There was in evidence at the close of appellee's case in chief, and is now in evidence, Exhibit 6 which is a letter dated March 13, 1962, from appellant to the United States National Bank, Eugene, Oregon, reporting to the bank the information obtained by appellant from the Reedys and enclosing an invoice, in evidence as Exhibit 7, for a $15.00 charge by appellant's employer, Pacific Coast Claims Adjusters, against the bank. Also in evidence as Exhibit 8 is a paid $15.00 check bearing the Durbin account name and issued by that bank to and endorsed by said employer of appellant.
FBI agent Feldhaus testified that he talked with appellant on June 27, 1962 when appellant said that he could not remember seeing the Reedys on the previous March 13th and that he did not
Also in its case in chief, appellee on the limited question of appellant's intent introduced evidence of two prior transactions of appellant when he repossessed a boat and an automobile, and was said by witnesses to have impersonated law officers.
From the foregoing evidence which was before the Trial Court and jury at the close of and in support of appellee's case in chief, it readily appears that such evidence and reasonable inferences to be drawn therefrom were sufficient to sustain a verdict of guilty of the charge as to all its elements, and that without other evidence if both sides had then rested, appellee would have been entitled to have the case submitted to the jury as against appellee's challenge to the sufficiency of appellee's evidence. The Trial Court did not err in overruling appellant's challenge and in denying his motion to dismiss made upon the close of appellee's case in chief.
Thereupon, appellant proceeded with his defense, and himself took the witness stand, denied that he represented himself as from the FBI, testified that for four or five years he had been a private investigator or repossessor and that prior to that he had been a police officer in Los Angeles. Other defense witnesses testified as to the credentials normally carried by private investigators and repossessors and as to appellant's good character. Appellant did not testify nor does he now contend that he was an FBI agent. The evidence does not show that he was. Instead, it does show he was a private investigator and repossessor. There was then competent evidence from which the jury could properly infer that appellant was not an FBI agent and find that he falsely represented himself to be one.
The evidence supports a finding of the jury that, by means of his FBI impersonation, appellant obtained from the Reedys information concerning the whereabouts of John Durbin, which was of value to him, since as further appears from the record, he was paid $9.00 for his services in the Durbin car repossession matter.
Appellant's further objection to the introduction of evidence of appellant's two prior similar law officer impersonations on the alleged grounds that such evidence was irrelevant, immaterial and remote was carefully considered and overruled by the Trial Court, and we think rightly so. Appellee had the burden of proving criminal intent, and evidence of similar acts occurring reasonably near in time and reflecting intent similar to that charged in this case was clearly relevant and material as throwing light upon and explaining the intent with which the appellant did the things charged against him in the indictment.
Furthermore, we think the Trial Court properly ruled that appellant's two prior acts of impersonation in question were not too remote in time (1) since the first one occurred on August 30, 1961, only about 6½ months before the offense alleged in this case, when the evidence tended to show that appellant succeeded in repossessing a boat after falsely representing himself to be "from the Federal Bureau of Investigation" and "from the FBI", and (2) since the second prior similar act occurred on January 11, 1962, only 2 months before the offense alleged in this case, when the evidence tended to show appellant repossessed a Thunderbird automobile after falsely representing himself as "National City Police".
We reject appellant's contention of error in the Trial Court's instruction to the jury on criminal intent as that instruction was a correct and clear expression of the law applicable to the subject of, and correctly explaining, criminal intent, and clearly distinguishing it from motive.
There can be no question in this case but that, both at the close of appellee's case in chief and at the close of all the evidence, there was substantial evidence to support a verdict of guilty; and in that connection the Government is entitled to have the Court take the view of the evidence most favorable to the Government. The Supreme Court has held that
Likewise, this Court has ruled
In this case, finding no error in the Trial Court's action, we affirm.