United States v. Ted Dudek A/K/A Ted Landers

JOHN W. PECK, Circuit Judge,

concurring.

I concur in the majority opinion and in the conclusion that the district judge did *1297 not commit an abuse of discretion by admitting evidence of other, nonfederal crimes of appellant, on the ground that under Federal Rule of Evidence 404(b), the probative value of the contested evidence outweighed its prejudicial impact. “[W]hen reviewing a district court’s ruling on the admissibility of evidence under Rule 404(b), the central question is whether the trial court abused its discretion in determining that the probative value of the evidence outweighed its potential prejudicial effect.” United States v. Czarnecki, 552 F.2d 698, 702 (6th Cir. 1977); United States v. McFadyen-Snider, 552 F.2d 1178, 1183 (6th Cir. 1977); United States v. Riggins, 539 F.2d 682 (9th Cir. 1976); Federal Rules of Evidence 404(b), Advisory Committee Note.

However, I express reservations concerning the statement, “We measure the admissibility of this evidence against this court’s statement of the rule set forth in United States v. Ring, 513 F.2d 1001 (6th Cir. 1975) .”, because Ring was not decided under Federal Rule of Evidence 404(b), which had not then gone into effect. Although the portion of Ring quoted in the opinion is not in conflict with Rule 404(b), the fact remains that Ring stated the rule in this Circuit prior to the adoption of the Federal Rules of Evidence.

While it may be true that, as the present case illustrates, the wise application of the Ring rule as opposed to the application of Rule 404(b) would not necessarily lead to different results, there still may be some difference between the two. Under Ring the other crimes or bad acts generally had to have been substantially similar, had to have occurred at about the time of the offense charged, and motive or lack of mistake had to have been in issue, but these requirements were not incorporated in Rule 404(b) as a rigid checklist. See also U. S. v. Nemeth, 430 F.2d 704, 705 (6th Cir. 1970). “The Advisory Committee Note to Rule 404(b) states that ‘[n]o mechanical solution is offered’ to the question of determining when the rule permits the introduction of evidence of other crimes or bad acts.” United States v. Czarnecki, supra, 552 F.2d at 702; United States v. McFadyen-Snider, supra, 552 F.2d at 1183. In Czarnecki , this Court held the district court did not abuse its discretion in admitting into evidence testimony that could have suggested that appellant Czarnecki had engaged in other crimes by hiring a notorious character on other occasions. Therein the relationship between appellant Czarnecki and the notorious character was a crucial issue, and the evidence, although of possibly dissimilar acts, was held to be more probative than prejudicial.

APPENDIX A

Whereas there has been filed with me an affidavit of which the following is a copy:

Before me, Leo P. Morley, a Judge of the Municipal Court of Youngstown, Ohio, personally came one Detective James De Angelo who being first duly sworn according to law deposes and says: That he believes and has good cause to believe that on or about the 15th day of February, 1974, in the City of Youngstown, Mahoning County, State of Ohio, Certain property to-wit: safes, wigs, TV sets, stereo equipment, gas ranges, weight scales, pistols, microwave ovens. All of this property being stolen in burglaries.

In a house, building or place, described as follows, to-wit: 1023 Bentley Avenue, Youngstown, Ohio. A two story frame house whose bills are paid by the AM Machine & Supply Company of 1021V2 Ravenna Avenue is occupied by John Doe aka AM Machine and Supply Co., 1023 Bentley Avenue.

The affiant says that he has good reasons to believe and does believe that the aforesaid property or some part thereof is still kept or concealed at the place aforesaid, and that there is urgent necessity for the search thereof to be made in the daytime. This affidavit is based on fact as follows: Information received from an informant, who in the past has given reliable information that resulted in several arrests and convictions. In addition said informant has given information in the past on numerous occasions that resulted in the recovery of large quantities of stolen property.

*1298 /s/ DET. JAMES DE ANGELO

Affiant

Sworn to before me by said Detective James De Angelo affiant and subscribed in my presence this 15th day of February, 1974.

/s/ LEO P. MORLEY

Judge

APPENDIX B

Whereas there has been filed with me an affidavit of which the following is a copy:

Before me, Leo P. Morley, a Judge of the Municipal Court of Youngstown, Ohio, personally came one Detective James De Angelo who being first duly sworn according to law deposes and says: That he believes and has good cause to believe that on or about the 15th day of February, 1974, in the City of Youngstown, Mahoning County, State of Ohio, Certain property to-wit: safes— boats — wigs—pistols—TV sets — gas ranges, microwave ovens, weight scales. All at this property being stolen in burglaries.

In a house, building or place, described as follows, to-wit: 1021V2 Ravenna Avenue, Youngstown, Ohio a cement block building with aluminum siding; also attached to this structure an office, street No. 121 Ravenna Avenue is occupied by Joe Doe aka AM Machine and Supply Co., 1023 Bentley Avenue.

The affiant says that he has good reasons to believe and does believe that the aforesaid property or some part thereof is still kept or concealed at the place aforesaid, and that there is urgent necessity for the search thereof to be made in the daytime. This affidavit is based on facts as follows: Information received from an informant, who in the past has given reliable information that resulted in several arrests and convictions, in addition said informant has given information in the past on numerous occasions that resulted in the recovery of large quantities of stolen property. Also that Federal Agents have searched this establishment for stolen guns on 2/14/74 and in their search then found a stolen boat, stolen from Easton, Maryland on 11/26/72.

/s/ DET. JAMES DE ANGELO,

Affiant

Sworn to before me by said Detective James De Angelo affiant and subscribed in my presence this 15th day of February, 1974.

/s/ LEO P. MORLEY, Judge