                                   ___________

                                   No. 95-3048
                                   ___________

United States of America,              *
                                       *
          Plaintiff - Appellee,        * Appeal from the United States
                                       * District Court for the
     v.                                * District of Minnesota.
                                       *
Dennis M. Forcelle,                    *
                                       *
          Defendant - Appellant.       *


                                   ___________

                      Submitted:   February 16, 1996

                          Filed:   June 24, 1996
                                   ___________

Before McMILLIAN, LAY, and JOHN R. GIBSON, Circuit Judges.

                                   ___________

JOHN R. GIBSON, Circuit Judge.


     Dennis Forcelle appeals his convictions on one count of mail fraud,
18 U.S.C. § 1341, and six counts of interstate transportation of monies
obtained by fraud, 18 U.S.C. § 2341.    He argues that his convictions should
be reversed because the district court abused its discretion in admitting
evidence and in instructing the jury.     We reverse and remand for retrial.


     In 1967, Forcelle co-founded RMS Company.         RMS started as a general
machine shop and developed expertise as a manufacturer of precision parts
for the aerospace and medical industries.        In 1982, Cretex bought RMS for
about four and one-half million dollars.           Cretex retained Forcelle as
president to run the company.
     Forcelle was charged in an eleven-count indictment with mail fraud
and interstate transportation of funds obtained by fraud.     The government
alleged that Forcelle used RMS monies to pay for a portion of a drag racing
chassis and a portion of a beach-front house in New Jersey.   The first ten
counts of the indictment involved five RMS checks, totalling $191,000, used
to pay for about one-third of the cost of constructing the New Jersey home.
Count 11 involved two RMS checks, totalling $37,000, used to buy the drag
racing   chassis.   Forcelle admitted that he was responsible for the
deceptive invoices used to access RMS money to pay for the home and the
racing chassis, but he denied any criminal intent.


     Forcelle explained that he used the RMS funds to pay for the New
Jersey home because he intended to use the home as a base to expand the
company's East Coast market presence.      Forcelle believed that the home
would benefit RMS and that RMS would use the home to entertain customers,
to hold meetings, and to reward RMS employees.     He explained that he did
not tell Cretex of his plans for the New Jersey residence because Cretex
would be too short-sighted to appreciate the value of such a purchase.
Forcelle planned to eventually tell Cretex about the house, believing that
"after there had been a season's use of the home, [Cretex] would see the
advantages of it and there wouldn't have been a problem."         Similarly,
Forcelle admitted that he had a false invoice created to purchase the race
car chassis, but that he felt it appropriate for RMS to share some of the
cost because the racing operation had been used to promote RMS to its
customers, employees, and suppliers.


     At trial, the government produced evidence that Forcelle stole
platinum scrap from RMS Company and bribed an official at Boeing Company.
Forcelle denied these allegations.   The government also introduced evidence
that Forcelle had improvements made to his house and the homes of two other
RMS employees at RMS's expense.


     Forcelle objected to the admission of this evidence, arguing




                                     -2-
that evidence of other crimes is inadmissible under Federal Rule of
Evidence 404(b).   The district court admitted evidence about the platinum
and home improvements as res gestae evidence, evidence of other criminal
activity for the purpose of providing the context in which the charged
crimes occurred.


     During trial, outside the presence of the jury, the district judge
made several observations about the admission of the res gestae evidence.
For example, the judge stated:     "[W]e are now off into all kinds of things,
and I think both counsel are off into things that don't seem to be very
relevant to this case."    Later, the judge expressed concern that "there has
been a lot of evidence introduced . . . that doesn't seem . . . to have
direct bearing on the evidence or on the indictment."      Finally, the judge
stated that "these other areas, like platinum, have sort of overtaken the
evidence that really relates to the mail charges."        The judge asked the
government and the defense to propose a limiting instruction for the jury
concerning the res gestae evidence specifically the evidence about the
platinum and home improvements.      The court instructed the jury:


            Evidence or testimony that the defendant may have
            been involved in other criminal activity while
            president of RMS is not evidence or proof that he
            committed the offenses charged in the indictment.
            Such testimony has been allowed for the limited
            purpose of assisting you in understanding the time,
            place and circumstances of the acts which form the
            basis of the offenses charged in the indictment.


     During jury deliberations the jury sent several questions to the
court.   The jury asked:    "Does the deceitful diversion of RMS funds, for
purposes intended to be of immediate and/or future financial benefit to
RMS, constitute `intent to defraud?'"     The court answered:   "This question
must be answered by you by applying the law given in the instructions to
the facts you have found.     It




                                      -3-
is the jury's duty to answer this question."                The jury found Forcelle
guilty on one of the five counts of mail fraud and all five counts of
interstate transportation of money obtained by fraud in connection with the
New Jersey home.       The jury convicted Forcelle on the count of interstate
transportation of money obtained by fraud in connection with the racing
chassis.


     Forcelle's presentence investigation report originally included the
platinum loss and home improvement expenditure as relevant conduct.              See
U.S.S.G. §        1B1.3(a)(2) (Nov. 1995).      The district court held that the
losses attributable to the theft of platinum and improvements to employees'
homes should be stricken from the report.             The court reasoned that the
uncharged acts, particularly the theft of platinum, were not similar to the
acts of creating false invoices as charged in the indictment.              The court
specifically found that the theft of platinum was not part of the same
course of conduct or part of a common scheme or plan.                The court also
pointed out that the value of the improvements to the employees' homes, to
the extent that they constituted relevant conduct, did not affect the loss
calculation.      The district court sentenced Forcelle to twenty-seven months
for the mail fraud count and a concurrent twenty-seven month sentence on
the remaining counts.        Forcelle appeals.


     Forcelle first argues that a new trial is warranted because of the
district court's errors in admitting the evidence about the stolen platinum
and home improvements.         He also argues that the government failed to
establish     a    factual   basis   to   establish   any    wrongdoing   for   these
allegations.       Finally, he contends that the court erred by not giving a
limiting instruction at the time the government introduced the evidence and
by denying Forcelle's proposed jury instruction about the evidence.


     We review the district court's evidentiary rulings for an abuse of
discretion.       United States v. Ball, 868 F.2d 984, 987 (8th




                                          -4-
Cir. 1989).


     In general, evidence of crimes by the defendant, not charged in the
indictment, are not admissible.    Fed. R. Evid. 404(b) ("[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith"); United States v.
Clemons, 503 F.2d 486, 489 (8th Cir. 1974).       However, evidence of other
crimes is admissible for the purpose of providing the context in which the
crime occurred.     We have sometimes called this evidence "res gestae" or
"intrinsic" evidence.1    United States v. Moore, 735 F.2d 289, 292 (8th Cir.
1984).       We have explained that when "evidence of other crimes is `so
blended or connected, with the one[s] on trial as that proof of one
incidentally involves the other[s]; or explains the circumstances thereof;
or tends logically to prove any element of the crime charged,' it is
admissible as an integral part of the immediate context of the crime
charged."     United States v. Bass, 794 F.2d 1305, 1312 (8th Cir.) (quoting
United States v. Derring, 592 F.2d 1003, 1007 (8th Cir. 1979)), cert.
denied, 479 U.S. 869 (1986).     Under Rule 404(b), evidence of other crimes
is also admissible as "proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident . . . ."


     The government argues that the district court correctly admitted the
platinum evidence and the home improvement evidence because this evidence
constitutes an integral part of a series of Forcelle's criminal acts
defrauding RMS.     Alternatively, the government argues that the evidence is
admissible as proof of




         1
        The district court also called the evidence "res gestae"
evidence, but some commentators and courts have disapproved of that
term, calling the term useless or unsatisfactory. See McCormick on
Evidence § 190 (John William Strong ed., 4th ed. 1992).        Some
courts have substituted phrases such as "same transaction evidence"
or "`complete story' principle" for the term res gestae evidence.
See id.

                                      -5-
motive, preparation, opportunity and intent under Federal Rule of Evidence
404(b).


      Forcelle's alleged platinum stealing is entirely distinct from the
charges of mail fraud and interstate use of funds obtained by fraud, as the
district judge observed.        The charged counts focused on Forcelle's purchase
of a house and a drag racing chassis.           The allegations that Forcelle stole
platinum from RMS is unrelated to the charged counts.              Proof that Forcelle
committed mail fraud or illegally transported monies obtained by fraud when
he bought the race car chassis or New Jersey home does not incidentally
involve proof that Forcelle also stole platinum from RMS.                      Indeed, the
government presented its proof about the platinum primarily from four
witnesses, Geraldine Grace, David Thompson, Michael Potter, and Sharon
Hanson, although numerous other witnesses also testified about the platinum
during the course of the trial.            These four witnesses were all employees
of   RMS   and    testified    only    about   their    involvement      and    Forcelle's
involvement with the platinum.         Their testimony did not deal with the house
or the car.       After testimony about the charges in the indictment, the
government's case turned to the issue of platinum, and about three quarters
of the testimony during the first four days of the trial dealt with this
issue.


      In its brief, the government contends it introduced only "limited"
evidence about the platinum.               The government downplays its evidence,
stating    it    consisted    only    of   "several   witnesses"   and    "very    limited
questions."      This characterization does not square with the trial record.
The government opened up the platinum issue in its opening statement.                 Then
in the early days of trial the government's witnesses provided detailed
information to the jury about how RMS bought, used, inventoried, stored,
and disposed of platinum.            There was extensive testimony about record
keeping and safekeeping procedures in connection with the platinum.
Several days of the trial were devoted solely to testimony about the
platinum allegations.         Donald Schumacher, the chief financial




                                            -6-
officer for Cretex, testified that based on his review of RMS's records
there was approximately 2,000 ounces of platinum "placed aside" for
Forcelle, and that the average price of platinum was $400 an ounce.


       In those cases in which we have approved the use of other crimes
evidence as an integral part of the context of the crime charged, the other
crime evidence was closely or inextricably intertwined with the charged
crime.     See, e.g., United States v. Severe, 29 F.3d 444, 447 (8th Cir.
1994) (evidence of drug delivery "inextricably intertwined" with the
conspiracy charge), cert. denied, 115 S. Ct. 763 (1995); Bass, 794 F.2d at
1313   (evidence    was   "closely   intertwined    with   the    entire    criminal
transaction").     We have often explained the other crime evidence "completes
the story" or provides a "total picture" of the charged crime.          See, e.g.,
Ball, 868 F.2d at 988 (evidence gave jury a "total picture" of defendant's
state of mind).


       The government's general contention that the district court did not
abuse its discretion in admitting the platinum evidence because the
evidence was "part of a series of criminal acts serving to defraud the
company and misappropriate resources" is simply a repetition of the
standard for admitting evidence of other crimes and does not explain how
the evidence meets the standard for admission of such evidence.                   The
government charged Forcelle with specific instances of defrauding RMS by
creating false invoices to pay for part of the New Jersey home and the race
car chassis.     Evidence that Forcelle stole platinum does not complete the
story of the charged crimes.     See, e.g., United States v. McGuire, 45 F.3d
1177, 1188 (8th Cir.), cert. denied, 115 S. Ct. 2558 (1995); United States
v. Two Eagle, 633 F.2d 93, 95-96 (8th Cir. 1980).          The evidence about the
platinum    is    evidence   showing   a     discrete   example    of      Forcelle's
misappropriation of company resources, and provides no additional context
for the crimes charged.      See Moore, 735 F.2d at 292.




                                       -7-
      Our conclusion that the platinum evidence is not admissible as res
gestae evidence is solidified by the district court's ruling on Forcelle's
motion to strike portions of his presentence report.   The court ruled that
the platinum evidence did not qualify as "relevant conduct," specifically
finding that the evidence was not part of the same course of conduct.


      Even if the platinum evidence is not admissible as res gestae
evidence, the government contends it is admissible under Rule 404(b) for
the   purpose of proving motive, preparation, opportunity and intent.
Federal Rule of Evidence 404(b) allows the use of evidence about "other
crimes, wrongs, or acts" if it has a bearing on any relevant issue other
than the defendant's propensity toward criminal activity.    United States
v. Powell, 39 F.3d 894, 896 (8th Cir. 1994); United States v. Kern, 12 F.3d
122, 124 (8th Cir. 1993).


      To admit Rule 404(b) evidence for purposes other than to prove
propensity, the evidence must:


      (1) be relevant to a material issue raised at trial, (2) be
      similar in kind and close in time to the crime charged, (3) be
      supported by sufficient evidence to support a finding by a jury
      that the defendant committed the other act, and (4) not have a
      prejudicial value that substantially outweighs its probative
      value.

Id. at 124-25.


      The evidence that Forcelle stole platinum from RMS fails the "similar
in kind" element of this test.   Evidence that Forcelle stole platinum from
RMS is different from the charges that Forcelle caused false invoices to
be created in order to obtain RMS funds to service his lifestyle.       Cf.
United States v. Sykes, 977 F.2d 1242, 1246 (8th Cir. 1992) (crimes were
virtually identical in nature and reasonably close in time).     Again, our
conclusion that the evidence is not similar in kind to the charged crimes
is supported by the




                                    -8-
district court's finding in sentencing that the platinum evidence did not
constitute relevant conduct.   In rejecting the evidence for the purpose of
sentencing, the court specifically found that the evidence was not similar
to the acts of creating false invoices and was not part of the same course
of conduct or relevant to proving a common scheme or plan.


     Finally, we cannot conclude that the error in admitting the platinum
evidence was harmless.     See Clemons, 503 F.2d at 491 ("[t]he danger of
prejudice to the defendant due to admission of evidence of other crimes is
always great.").   As discussed, there was substantial testimony about the
missing platinum.     See id. (noting that considerable time at trial was
spent on the incident).    The total estimated loss to RMS from the missing
platinum was $800,000.     This alleged loss was substantially greater than
the losses attributed to the race car chassis ($37,000) and the beach-front
home ($191,733).     The government does not challenge Forcelle's statement
on appeal that approximately 900 pages of the approximately 2,000 page
trial transcript dealt with evidence about the platinum allegations.    Our
examination of the record demonstrates that in the first four days of the
trial, some 620 of 809 pages of transcript dealt with this subject.
Further study of the transcript reveals that 928 of the 1982 total pages
of the trial transcript dealt with testimony concerning the platinum issue.
The government blames the substantial testimony on Forcelle's extensive
cross-examination.    Although the amount of the testimony is in large part
due to Forcelle's cross-examination of the government's witnesses, the
government brought out the allegations of the missing platinum in its
opening statement and called multiple witnesses, beginning with the early
days of the trial, to develop the evidence. Forcelle cannot be blamed for
failing to sit idle in the face of the damning evidence produced by the
government.   Under these circumstances, we cannot say that the platinum
evidence did not influence the jury's verdict.        The district judge's
numerous comments during the course of the trial




                                     -9-
about the significant time spent on the platinum issue and the concern
evident      in   these   comments   underscore   our   conclusion   concerning   the
importance of this testimony on the jury's verdict.           We therefore reverse
                                 2
and remand for a new trial.


     The evidence about the home improvements is a much closer question.
As he did with the home and the racing car, Forcelle falsified invoices to
pay for the home improvements, and he justified the expenditures as
legitimate business expenses.        Forcelle admitted that he authorized the use
of RMS funds to pay for the home improvements, just as he admitted
responsibility for the use of RMS funds for the racing chassis and the
beach-front home.          Forcelle explained that he believed that it was
appropriate to use RMS funds because it was for the benefit of RMS, the
same explanation he used for the race car chassis and home purchases.
Thus, the evidence that Forcelle, on other occasions, used company funds
as he saw fit is more closely intertwined to the charged crimes and is
relevant to showing Forcelle's intent.            See Bass, 794 F.2d at 1312; Fed.
R. Evid. 404(b).          The district court did not abuse its discretion in
admitting the evidence about the home improvements.


     We reverse Forcelle's convictions and remand the case for a new
trial.




         2
      In light of this conclusion, we need not decide Forcelle's
other ground for reversal, that the court erred in giving a
supplemental instruction to the jury after the jury submitted a
question to the court, as the issue is unlikely to recur on
retrial.

                                         -10-
A true copy.


     Attest:


           CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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