United States v. Pittman, Theodore ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3359
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
THEODORE PITTMAN, III,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 01-CR-19-C-01—Barbara B. Crabb, Chief Judge.
____________
ARGUED JANUARY 8, 2003—DECIDED FEBRUARY 26, 2003
____________
Before FLAUM, Chief Judge, and EASTERBROOK and
DIANE P. WOOD, Circuit Judges.
FLAUM, Chief Judge. After a jury trial, Theodore
Pittman, III, (“Pittman III”) was convicted of making a
false statement to a federally insured bank in violation
of 18 U.S.C. § 1014. On appeal Pittman III contends that
the district court erred in admitting certain prior crimes
evidence and that his trial attorney was ineffective for
failing to object to that evidence. We affirm.
I. BACKGROUND
From 1994 through 1998, Pittman III fashioned himself
as an investment advisor doing business as Capital View
2 No. 01-3359
Holdings in McFarland, Wisconsin. In this capacity Pitt-
man III obtained more than $800,000 from various cus-
tomers and ended up squandering all of it, including
more than $100,000 he received from his father, Theodore
Pittman, Jr. (“Pittman Jr.”). When customers started mak-
ing repeated requests for refunds, Pittman III convinced
his father to apply for a $25,000 loan with Northwest
Savings Bank of Amery, Wisconsin. Pittman Jr. listed the
$100,000 he had invested with his son as collateral to
secure the loan.
On August 26, 1998, the Northwest Savings Bank
received a fax stating that $145,742 was “held in deposit
for ‘The Pittman family trust’; Capital View holding,
Theodore L. Pittman, III, trustee.” The document was
purportedly signed by a “Kent A. Slinger” from Middleton
Community Bank in Middleton, Wisconsin. Based on this
information, the Northwest Savings Bank approved a
$25,000 short-term loan to Pittman Jr. Then, per Pitt-
man III’s instructions, the bank wired $15,000 of the
proceeds to Sun Dance Apartments, a business owned
by two of Pittman III’s investors, and the remainder to
Dorene Disch-Pittman, then his wife.
In October 1998 Pittman Jr. called a loan officer at
Northwest Savings Bank and told her that she would
soon be receiving a check that was larger than needed to
pay off the loan. Several days later, when the check had
not arrived, Pittman Jr. went to the bank in person, and
he and the loan officer together called Kent Slinger at
the Middleton Community Bank. Slinger told them that
his bank did not hold any Pittman family trust accounts
and that the August 1998 fax was a fraud.
After Pittman III was indicted, the government filed a
notice of intent to introduce evidence of an earlier con-
viction to show intent, knowledge, plan, and identity. The
earlier conviction stemmed from the following events: In
No. 01-3359 3
an effort to secure a loan from M&I Bank in Madison,
Wisconsin, Pittman III created a document purportedly
signed by a “Kevin Schmidt” at “Broker Services,” which
falsely claimed that Pittman III owned over $261,000 in
stock. Pittman III then reprogrammed his fax machine
to reflect a false sending location and, on July 11, 1996,
faxed the bogus document to M&I Bank as proof that
he owned the collateral. For this scheme Pittman III re-
ceived 27 months in prison.
In its trial brief, the government argued that the
prior crimes evidence was relevant to show Pittman III’s
intent, knowledge, plan, and identity. The government
also asserted that the prior conviction was sufficiently
close in time to the charged offense, that a factual basis
for the evidence existed, and that the probative value of
the evidence was not outweighed by the danger of un-
fair prejudice. Though Pittman III’s counsel initially re-
served the right to file a responsive brief on the issue, he
later stated at trial that he had no objection to the use
of the evidence.
In addition to the prior crimes evidence, the govern-
ment submitted evidence showing that a call had been
placed from Pittman III’s home office to the Northwest
Savings Bank fax line at 5:05 p.m. on August 26, 1998.
Pittman III’s fax machine had been reprogrammed to
indicate that the document came from “Middleton Commu-
nity Bank.” Further, according to the government’s theory
of the case, Pittman III had created the fax by cutting
and pasting the header and signature from a legitimate
document—a loan extension agreement—that had been
sent to him earlier by Kent Slinger. This theory was
supported by the fact that a document was found among
Pittman III’s belongings that was identical to the one
faxed to Northwest Savings Bank in all respects except
that it was missing the header and signature line.
4 No. 01-3359
After being instructed that it could consider Pittman III’s
conduct relating to the M&I Bank scheme “only on the
questions of plan, intent, knowledge and identity,” the
jury found him guilty. The district court then sentenced
Pittman III to 24 months’ imprisonment and revoked
the supervised release that he was serving at the time
for the earlier conviction.
II. ANALYSIS
Pittman III’s first argument on appeal is that the dis-
trict court erred in admitting the prior crimes evidence,
which he says should have been excluded under Fed. R.
Evid. 404(b). The government is correct, however, that
Pittman III waived this issue because his trial counsel
affirmatively represented that he had no objection to
the admission of the evidence. United States v. Cooper,
243 F.3d 411, 416-17 (7th Cir. 2001).
In any event we must review the Rule 404(b) issue to
assess the merits of Pittman III’s second argument—that
his trial attorney was ineffective for failing to object to
the prior crimes evidence.1 Pursuant to Rule 404(b), evi-
dence of prior acts is admissible if the proponent shows
that: (1) the evidence is directed towards a matter in is-
1
Though we generally discourage defendants from bringing
ineffective assistance claims on appeal, it may be appropriate
in cases where the record is sufficiently developed for meaning-
ful review and when appellate counsel did not represent the
defendant at trial. United States v. Fuller, 312 F.3d 287, 291 (7th
Cir. 2002). Here, Pittman III’s appellate attorney, who was not
counsel at trial, represented in response to a question from the
bench that Pittman III is aware of the consequences of raising
ineffective assistance now, rather than on collateral attack, but
wished to proceed nonetheless. We will therefore address the
merits of his claim.
No. 01-3359 5
sue other than the defendant’s propensity to commit the
crime charged; (2) the other act is similar enough and
close enough in time; (3) the evidence is sufficient to
support a jury finding that the defendant committed the
similar act; and (4) the probative value of the evidence is
not substantially outweighed by the danger of unfair
prejudice. United States v. Joseph, 310 F.3d 975, 978 (7th
Cir. 2002). Pittman III contests only the fourth prong.
We conclude that trial counsel’s failure to object to
the Rule 404(b) evidence was not objectively unrea-
sonable and therefore did not constitute ineffective assis-
tance. See Strickland v. Washington, 466 U.S. 668, 687-88
(1984). Pittman III’s complaint seems to center on the
government’s “extensive” use of the evidence—“one entire
witness devoted to Pittman [III]’s prior crime and 10
transcribed pages of cross-examination of Pittman [III],” he
says. Pittman III concedes, however, that the evidence
was offered for the legitimate purposes of proving his intent
and plan to defraud Northwest Savings Bank in the same
manner that he did M&I Bank, as well as to prove iden-
tity through modus operandi. (The government did not
have any direct evidence that Pittman III himself faxed
the fraudulent document to Northwest Savings Bank.)
The prior acts evidence was therefore highly probative,
and the jury’s use of the evidence on such legally relevant
issues as plan and identity was not unfairly prejudicial.
United States v. Jones, 248 F.3d 671, 676 (7th Cir. 2001).
Further, any risk that the jury might have also used the
evidence to infer propensity was lessened by the district
court’s limiting instruction, as we assume that juries fol-
low the instructions they are given. Id.Pittman III’s claim of ineffective assistance fails for
another reason: he has not shown that, but for his at-
torney’s alleged errors, the outcome of trial would have
been any different. Strickland, 466 U.S. at 694. Even with-
out the prior crimes evidence, there was sufficient other
6 No. 01-3359
evidence on which the jury could have found Pittman III
guilty—the Northwest Savings Bank loan was arranged
between Pittman III and his father; $15,000 of the loan
proceeds was used to pay off Pittman III’s customers; the
fraudulent document was sent from his home office; the
signature and header matched those on the loan extension
agreement that was in his possession; and an identical
document, minus the signature and header, was found
among his belongings.
III. CONCLUSION
Because the district court did not err in admitting
the prior crimes evidence, trial counsel’s failure to object
to the admission did not fall below an objective standard
of reasonableness. He therefore did not furnish ineffec-
tive assistance, and so the judgment of the district court
is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-26-03