Opposition — Watkins v. United States

—™ RECEIVED

OFFICE OF THE CLERK

SUPREME Court, U.S.

+ 75-7005

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976 é

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TONY LEROY WATKINS, PETITIONER ‘

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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7 MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

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ROBERT H. BORK,

Solicitor General,

Department of Jus pertment of Justice ,

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No. 75-7005

TONY LEROY WATKINS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARK. TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES iN OPPOSITION

Petitioner contends that the district court abused

its discretion by admitting relevant evidence whose probative

value was outweighed by its prejudicial effect.

Following a jury trial in the United States District

Court for the Northern District of Georgia, petitioner was

convicted of knowingly transferring four United States savings

bonds bearing forged endorsements, in violation of 18 U.S.C.

473. He was sentenced to three years' imprisonment, to be

served consecutively to the state sentence then being served.

The court of appeals affirmed per curiam (Pet. App.).

The evidence at trial showed that on August 15, 1974,

forty United States savings bonds, with an approximate face

value of $2,250, were stolen from Joseph Lee Camp in Atlanta,

Georgia (Tr. 17-19). On August 24, 1974, an informant told

Secret Service Agent Barry Sternberg that a person called “Tony”

possessed about $3,000 worth of stolen bonds payable to Joseph

Camp and a trying to locate a buyer (Tr. 27-28). Agent Sternberg

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then arranged a meeting between petitioner and Agent Dwight

Ellison, at which petitioner told the undercover agent that

four of the bonds had been endorsed “by a friend of his" who

was unsuccessful in cashing them “because she did not have

sufficient identification" (Tr. 28, 73, 97). After some

negotiation, petitioner sold the forty bonds stolen from Camp

to Agent Ellison for $475. Petitioner was arrested by Agent

Sternberg shortly thereafter (Tr. 21, 97-99).

The four bonds bearing the forged endorsements were

introduced into evidence at trial (Tr. 22-23, 25-26). In

adéition, thirty-one of the other unsigned bonds sold by

pe-itioner to Agent Ellison were admitted, although they had

not been specified in the indictment (Tr. 87). Petitioner's

sc_e contention is that the district court abused its discretion

in admitting into evidence the United States savings bonds not

charged in the indictment, claiming that they constituted proof

of another crime and that their probative value was outweighed

by their “prejudicial effect and confusion of the issues"

(Pet. 7).

As petitioner concedes (Pet. 6), the question of

admissibility of relevant evidence is addressed to the sound

discretion of the trial court, which must determine whether the

probative value of the evidence is outweighed by its prejudicial

effect. United States v. Rocha, 527 F. 2d 423, 429 (C.A. 5),

certiorari denied, No. 75-6432, June 7, 1976; United States v.

Chapin, 515 F. 2d 1274, 1284 (C.A.D.C.), certiorari denied,

423 U.S. 1015. Each of the bonds introduced in evidence here was

sold by petitioner to Agent Ellison during the same transaction.

Since only those bonds bearing a forged endorsement came within

the scope of 1? U.S.C. 473, they alone were charged in the

indictment. Nevertheless, the remaining bonds were part of the

same criminal event and unquestionably were relevant to

petitioner's intent. : Accordingly, the district court did

not abuse its discretion in admitting the evidence.

*/ Even assuming that the unsigned bonds constituted evidence

of another crime, the settled rule is that such evidence may be

(continued)

It is therefore respectfully submitted that the

petition for a writ of certiorari should be denied.

ROBERT H. BORK,

Solicitor General.

SEPTEMBER 1976.

*/ (continued) admitted to prove “motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake

or accident.” Rule 404(b), Fed. R. Evid. See, e.g., Nye &

Nissen v. United States, 336 U.S. 613, 618. Furthermore, although

petitioner contends that the court erred in not giving a

cautionary instruction as to the purpose for which the unsigned

bonds were admitted, he neither requested such a limiting in-

struction at trial nor objected to its omission. The trial court

was not required to give such an instruction sua ete. See

Petley v. United States, 427 F. 2d 1101, 1106 (C.A. 5), certiorari

denied, 400 U.S. 827; United States v. Solomon, 422 F. 2d 1110,

1114 (C.A. 7), certiorari denied sub nom. Sommer v. United States,

399 U.S. 911.

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