GEWIN, Circuit Judge:
In a two-count indictment William J. Scanland was charged with passing two counterfeit twenty dollar bills in violation of 18 U.S.C. § 472.
The appellant presents two principal issues for our review. First, he contends that the district court erred in admitting evidence of a prior "bad" act of a similar nature to the offense alleged in the indictment since the prosecution stated at an Omnibus hearing
Scanland was identified by the clerks of two business establishments as the man who successfully passed a counterfeit twenty dollar bill in their store. His distinctive red hair apparently aided in establishing his identity. His modus operandi had been the same at both stores; he would pay for a small purchase with a twenty dollar bill. Both clerks became suspicious because of the bill's peculiar appearance and the appellant's nervous behavior. Each of these twenty dollar bills was established to be counterfeit by expert testimony.
Earlier the same day the appellant attempted to pass a twenty dollar bill at a third business establishment. In this instance, however, the clerk, Michael Palmer, rejected the bill because of its appearance and returned it to appellant. He then received another bill from Scanland that looked genuine. Mr. Palmer identified Scanland and testified that he made a small purchase with a twenty dollar bill.
An assistant United States Attorney notified appellant's counsel by letter of this prior incident but stated that because the Government could not show or prove that the bill was indeed counterfeit, the incident was not included in
When the Government and the accused voluntarily enter into pre-trial agreements we believe the parties are entitled to rely on such agreements in the preparation of their case. Subsequent developments, of course, may make it necessary for either or both parties to be released from their Omnibus hearing agreements. We expressly refuse to diminish the sound discretion vested in the district court to grant such releases.
The Government contends that its letter
Inadequate notice is one factor to be weighed in determining potential prejudice. As mentioned earlier a principal defense strategy was innocent possession. This theory is much less plausible
Despite the lack of reasonable notice and the potential for prejudice there may be some cases where the reason for the requested release from an agreement set forth in an Omnibus Hearing Report will outweigh all other factors. Not only might the release be necessary, but it might be quite justifiable in light of subsequent events. In the present case, however, the district court in making its ruling advanced no substantial reason for releasing the Government from its agreement. It only stated that it questioned the value of Omnibus reports and cited a departure by the appellant.
Having established that the departure from the agreement was erroneously allowed in this instance, the appellee would now assert that the error was harmless. We have previously explained the possible prejudice to the appellant's innocent possession defense theory, and upon these facts we cannot say that the evidence of a prior attempt to pass a "peculiar looking twenty"
Because the question may arise on retrial we shall briefly discuss the appellant's contentions with respect to the limitation of his inquiry regarding other counterfeit bills in circulation. In a motion to produce which was denied the appellant asked the district court "to order the United States to produce at the time of trial any and all bills alleged to be counterfeit in its possession, bearing the same serial numbers as the bills charged in the indictment against this defendant." At trial upon cross-examination of a Secret Service agent the appellant's counsel asked if he knew of any notes in circulation in Mobile County with the same or similar serial numbers. The agent replied that he did know of such bills, but when he was asked if he could produce them the prosecution objected stating the matter had already been decided. The prosecution objection was sustained.
The appellant hoped to establish that a large number of bills were in circulation, and this arguably would tend to prove that he came into possession of the bills innocently.
Reversed and remanded.
The agreement was signed by Government counsel, appellant's counsel, the appellant and a United States Magistrate. The Omnibus Hearing Report was approved by the district court and expressly adopted as binding upon the parties with no exceptions.