His victims were shot, bludgeoned with a sledgehammer
and once he blew up a victim while she sat in her car. In one case
Engleman killed an entire family so that the widow could claim the
millions in life insurance she had taken out on her husband, who was (due
to Engleman) now the sole heir to his late parent's oil business.
Engleman was a sociopath; as he stated, his talent
was to kill without remorse and he enjoyed planning and carrying out
killings and disposing of the remains, in order that it would net him
financial rewards (he loved the idea of getting away with his crimes,
slipping through the cops' fingers every time).
Engleman died in prison in 1999. The exact number of
Engleman's victims is unknown as he took this information to his grave.
Although Dr Glennon Engleman committed all of the
murders himself he also shared his crimes with a few accomplices, all of
them being very close friends of him. His accomplices included the two
wives of two men he killed for insurance money.
One of the wives named Barberra was eventually caught
and charged with conspiracy to murder and sentenced, while the other
wife (and her brother whom had also been one of Dr Englemans accomplices)
had to be set free in order for her and her brother's testimony against
Dr Engleman during trail.
Engleman was once married, to Ruth Jolley Engleman,
and had a son, David Engleman
-Susan Crain Bakos: Appointment
for Murder. The Story of the Killing Dentist (1988).
648 F.2d 473
UNITED STATES of America, Appellee,
Glennon E. ENGLEMAN, Appellant.
UNITED STATES of America, Appellee,
Robert HANDY, Appellant.
United States Court of Appeals for the Eighth
June 3, 1981
Before LAY, Chief Judge, and
STEPHENSON and ARNOLD, Circuit Judges.
STEPHENSON, Circuit Judge.
This is a consolidated appeal of two separate cases.
In the first case, Glennon Engleman (80-1906) and Robert Handy (80-1962)
appeal their joint jury convictions
on fifteen counts of mail fraud and one count of conspiracy to commit
mail fraud in connection with the death of Peter J. Halm, Jr. Basically
the charges arise out of an alleged scheme to defraud insurance
companies by insuring the life of Peter Halm, Jr. and then killing him
on September 5, 1976.
Engleman appeals on the grounds that it was error for
the district court: (1) to allow extensive testimony concerning
Engleman's complicity in the death of one Eric Frey in 1963, and sharing
in the insurance proceeds; (2) to allow tape recordings of Engleman's
conversations made without his consent to be played for the jury; and
(3) to refuse to provide the jury with written instructions during their
Handy appeals on the grounds that it was error for
the district court: (1) to refuse to sever his trial from that of his co-defendant
Engleman; (2) to allow evidence of Engleman's involvement in another
crime, the Eric Frey murder in 1963, to be admitted into evidence; (3)
to deny his motion for judgment of acquittal; (4) to allow co-defendant
Engleman's statements after the conspiracy had ended to be admitted
against Handy; (5) to allow certain hearsay to be received into evidence;
(6) to refuse to give certain limiting instructions; and (7) to refuse
to submit copies of the instructions to the jury for use during its
In the second case before us, Engleman appeals his
jury conviction (80-1961) in a later separate trial of violating 18
U.S.C. § 844(i) through the destruction, by means of an explosive, of a
vehicle used in an activity affecting interstate commerce and which
resulted in the death of Sophie Marie Barrera. Engleman was sentenced to
thirty years imprisonment on this charge to run consecutively to the
thirty year sentence imposed in the fraud trial (80-1906). Engleman
appeals on the grounds that it was error for the district court to allow
extensive testimony concerning Engleman's alleged participation in a
previous bomb incident involving Barrera and for the district court to
allow tape recordings of Engleman's conversations made without his
consent to be played for the jury.
We affirm the convictions of Engleman in both cases
(80-1906, 80-1961). We reverse and remand for a new trial the conviction
of Handy (80-1962).
II. PETER HALM DEATH SCHEME TO DEFRAUD (80-1906,
Glennon Engleman and Robert Handy appeal their
convictions for mail fraud and conspiracy to defraud which stem from the
death of Peter J. Halm and their scheme and conspiracy to collect
insurance proceeds resulting from his death. According to testimony
submitted at trial, one Carmen Miranda Halm, then Carmen Miranda, worked
for Engleman as a dental assistant trainee in his dentistry practice.
Miranda, who was much younger than Engleman, had
known Engleman much of her life. She apparently respected Engleman and
relied on his judgment. Miranda consulted with Engleman about some
financial difficulties and, according to Miranda, Engleman suggested
that she marry someone, take out a life insurance policy on him, and
Engleman would kill him. Engleman and Miranda would then split the
insurance proceeds. Engleman said he knew the scheme would work because
he had done it before when, in 1963, he killed Eric Frey, a business
associate, and divided the insurance proceeds with Frey's widow.
Miranda eventually agreed to the scheme. Engleman
counseled her on the criteria she should use in selecting a victim and
they eventually agreed on Halm. Miranda changed jobs at Engleman's
suggestion; however, Engleman continued to instruct her on how to
On October 31, 1975, Miranda and Halm were married.
After the wedding, Miranda stayed in touch with Engleman. He advised her
on how to obtain insurance on her husband, to have property placed in
her name, and to have her name placed as beneficiary on existing
Some months later, Engleman and Miranda planned
Halm's death. Engleman and Miranda scouted a number of locations.
Miranda lured Halm to selected locations on two occasions, but the
planned shootings were aborted because of problems with the plan. Co-defendant
Handy was present on one occasion.
A site near Pacific, Missouri, was selected for the
third attempt. The plan was practiced at the scene with Engleman giving
instructions as to how the plan should be carried out. On September 5,
1976, Miranda lured Halm to the location. As she stood next to Halm,
Engleman shot him with a rifle that had been previously purchased by co-defendant
Handy. Miranda screamed and ran. Engleman tried to calm her, but someone
called out, and Engleman disappeared.
Others arrived at the scene and an ambulance was
called. However, Halm was dead on arrival at St. Francis Hospital in
Washington, Missouri. After an autopsy, it was determined that Halm had
died of a gunshot wound in the back.
After Halm's death, Miranda collected approximately
$75,000 in insurance proceeds. In March 1977, Nicholas Miranda, Carmen
Miranda's brother, paid Engleman $10,000 in cash as payment for his part
in the scheme. Shortly thereafter, Engleman met with co-defendant Handy
who suggested the money should be broken down into smaller denominations
to avoid the money being traced. Ruth Engleman, Engleman's former wife,
testified to this transaction.
On January 16, 1980, Ruth Engleman contacted federal
law enforcement authorities and gave them information about her
husband's past activities. At the request of the Bureau of Alcohol,
Tobacco and Firearms, on February 14, 1980, she wore devices to allow
certain conversations between her and her former husband to be monitored
and recorded. During these taped conversations, Engleman acknowledged
his involvement with Carmen Miranda in a scheme to obtain money and that
he had received $10,000 from her brother Nicholas Miranda. During the
trial of Engleman and Handy on the mail fraud and conspiracy charges, an
edited version of the tapes was played.
The prosecution, over objection, also submitted the
testimony of John Newton Carter concerning the death of Eric Frey on
September 23, 1963. Carter was a partner of Engleman's in Pacific Drag
Strip. Carter testified that on the day of Frey's death, Eric Frey,
Sondra Frey, Nicholas Miranda, Engleman, and Carter were working at the
drag strip. They were blowing up a well. Carter and Engleman both set
off half sticks of dynamite in the well.
Carter testified that shortly thereafter Frey was
killed and that Engleman admitted killing Frey for the insurance
proceeds. The government also produced as witnesses representatives of
two insurance companies who testified that Frey's widow had collected on
insurance policies after his death. Handy asked the court, prior to
receiving the testimony of Carter and the insurance company
representatives, to again admonish the jury that this did not relate to
Handy. The court denied this request, noting that the jury had been so
admonished once and he would repeat the instruction at the close of the
It should also be noted that, as stated previously,
Carmen Miranda testified that Engleman had told her that he had killed
Eric Frey, a business associate, and divided the insurance proceeds with
In connection with Handy's participation in the
scheme to defraud, the prosecution submitted, along with other evidence,
the testimony of Carmen Miranda that Engleman had told her two months
after Halm's death that he had to pay Handy. Also submitted was the
statement of Nicholas Miranda that Engleman had said that during one of
the attempts on Halm's life he and Handy had to quickly run away when a
dog barked at them. Handy, who was present, agreed and said, "yes, we
did." In addition, the government submitted Engleman's recorded
statement to his former wife that he had given the $100 bills received
from Miranda to Handy and his wife. The government also presented
evidence that Handy had purchased the rifle used by Engleman in killing
A. Engleman and the Halm Death Scheme to Defraud
1. Testimony Concerning the Eric Frey Death in
Engleman contends that the testimony suggesting that
he was involved in the death of Eric Frey was inadmissible under
Fed.R.Evid. 404(b). Rule 404(b) states:
(b) Other crimes, wrongs, or acts. Evidence of other
crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show that he acted in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident.
The rules for admission of other crimes evidence are
well established: (1) the evidence of other crimes must be admissible on
a material issue raised; (2) the evidence must be similar in kind and
reasonably close in time to the charge at trial; (3) the evidence of the
other crime must be clear and convincing; and (4) the probative value of
the evidence must not be outweighed by its prejudice. United States v.
Frederickson, 601 F.2d 1358, 1365 (8th Cir.), cert. denied, 444 U.S.
934, 100 S.Ct. 281, 62 L.Ed.2d 193 (1979).
In reviewing the admissibility of evidence, this
court applies an abuse of discretion standard. United States v. Iron
Shell, 633 F.2d 77, 86 (8th Cir. 1980); United States v. Moss, 544 F.2d
954, 960-61 (8th Cir. 1976), cert. denied, 429 U.S. 1077, 97 S.Ct. 822,
50 L.Ed.2d 797 (1977); Control Data Corp. v. International Business
Machines Corp., 421 F.2d 323, 326 (8th Cir. 1970); Burger Chef Systems,
Inc. v. Govro, 407 F.2d 921, 930 (8th Cir. 1969).
Engleman argues that the evidence of Eric Frey's
death and the collection of insurance proceeds dealt with no material
issue in Engleman's trial which involved the death of Peter Halm and the
scheme to collect insurance proceeds. Engleman argues that the issue of
intent was not raised in the instant case because he denied the acts
charged. See United States v. Fierson, 419 F.2d 1020, 1022-23 (7th Cir.
The prosecution replies to this argument that when
specific intent is an element of an offense, proof of similar acts may
be admitted to carry that burden even if the defense to the charge is a
complete denial. United States v. Adcock, 558 F.2d 397, 402 (8th Cir.),
cert. denied, 434 U.S. 921, 98 S.Ct. 395, 54 L.Ed.2d 277 (1977); United
States v. Conley, 523 F.2d 650, 654 (8th Cir. 1975), cert. denied, 424
U.S. 920, 96 S.Ct. 1125, 47 L.Ed.2d 327 (1976).
Because the evidence was relevant to proving intent,
we conclude the district court did not abuse its discretion in allowing
the evidence to be admitted. United States v. Adcock, supra, 558 F.2d at
402 and United States v. Conley, supra, 523 F.2d at 654, do not require
the defendant to have raised the issue of intent for it to be an issue
in the case where, as in this case, the crime for which the defendant is
charged requires proof of specific intent.
Engleman also argues that in order for evidence of
similar crimes to be admitted, there must be an actual need for such
evidence in light of the issues and the other evidence available to the
prosecution. See United States v. Byrd, 352 F.2d 570, 575 (2d Cir.
1965). Appellant claims that if the government has a sufficient case to
survive a motion for directed verdict of acquittal and has "other"
probative evidence, evidence of similar crimes should not be admitted.
Appellant concludes that in view of the fact that this case survived the
motion for directed verdict and in light of the testimony of Carmen
Miranda, Nicholas Miranda, and Ruth Engleman about Engleman's
involvement in Halm's death, there was no need for the evidence.
We disagree. The evidence concerning intent and
motive was not so great as to make the evidence of similar crimes
cumulative. In the principal case relied on by Engleman, United States
v. Byrd, supra, 352 F.2d at 574-75, four co-defendants testified against
Byrd concerning his taking bribes while he worked for the IRS. Byrd is a
far stronger case than the instant case. We find no abuse of discretion
in the district court's admission of this evidence.
Appellant further argues that the evidence of Frey's
murder was not probative on a material issue similar in kind and
reasonably close in time to the issue at trial. It is our view that
because the crimes are nearly identical, the only issue that requires
discussion is whether the events were too remote in time. It is true
there was approximately a thirteen year gap between the offenses.
However, there is no absolute rule regarding the number of years that
can separate offenses. Rather, the court applies a reasonableness
standard and examines the facts and circumstances of each case. See, e.
g., United States v. Frederickson, supra, 601 F.2d at 1365; United
States v. Drury, 582 F.2d 1181, 1184 (8th Cir. 1978); United States v.
Jardan, 552 F.2d 216, 219 (8th Cir.), cert. denied, 433 U.S. 912, 97
S.Ct. 2982, 53 L.Ed.2d 1097 (1977). Upon reviewing the similarities of
the events and the length of time each crime required in planning and
execution, we cannot say the district court abused its discretion in
concluding thirteen years was not an unreasonable time.
Engleman's next argument is that the proof of
Engleman's involvement was not clear and convincing, as it must be for
the evidence to be admissible. United States v. Frederickson, supra, 601
F.2d at 1365. Engleman claims that only the testimony of Carmen Miranda,
who was not present at Frey's death, and John Carter, who had lied in
his previous deposition about the number of explosions he heard, linked
Engleman with the crime. Engleman contends this evidence is not "clear
We hold the district court did not err in its finding
that the evidence was clear and convincing. The evidence consisted of
testimony concerning admissions by Engleman which were corroborated by
other evidence and in light of the consistency and nature of this
evidence we cannot say that the district court abused its discretion in
the admission of the evidence.
Engleman's final argument against the admissibility
of the evidence is that its prejudice outweighed its probative value.
Engleman argues that the probative value of the evidence was low because
it was remote in time and dissimilar to the charge at trial and because
the government did not need the evidence. In addition, the prejudicial
impact of the evidence was great.
In examining the facts of the earlier crime, we note
that it bore on a material issue, was not too remote in time, was
reasonably similar, and the evidence of the crime was clear and
convincing. When comparing these factors against possible prejudice, we
conclude that the district court did not abuse its discretion in
determining that the prejudicial impact of the challenged evidence did
not substantially outweigh its probative value. See United States v. Two
Eagle, 633 F.2d 93, 97 (8th Cir. 1980); United States v. Calvert, 523
F.2d 895, 907-08 (8th Cir. 1975), cert. denied, 424 U.S. 911, 96 S.Ct.
1106, 47 L.Ed.2d 314 (1976).
2. Admissibility of Tape Recording
Engleman contends that it was error for the district
court to allow into evidence tapes of conversations between him and his
wife. Engleman argues that even though his wife consented to having the
conversations taped, he did not and the monitoring and taping was
therefore an unlawful search and seizure within the Fourth Amendment.
Engleman claims that a plurality of the Supreme Court in Katz v. United
States, 389 U.S. 347, 354-55, 88 S.Ct. 507, 512-513, 19 L.Ed.2d 576
(1967), supports his position.
We do not find Engleman's position persuasive. In
United States v. White, 401 U.S. 745, 746-54, 91 S.Ct. 1122, 1123-1127,
28 L.Ed.2d 453 (1971), the Supreme Court squarely faced this issue and
held such recordings were admissible. Furthermore, in United States v.
McMillan, 508 F.2d 101 (8th Cir. 1974), cert. denied, 421 U.S. 916, 95
S.Ct. 1577, 43 L.Ed.2d 782 (1975), we held:
It is now well settled that a defendant's Fourth
Amendment rights are not violated when the defendant's conversations
with a government informant are electronically monitored by a government
agent with the consent of the informant.
Id. at 104.
We hold the district court did not abuse its discretion in admitting
3. Written Instructions to the Jury
Engleman's third ground for relief is that the
district court did not provide written copies of the instructions to the
jury upon the request of the defense counsel. Engleman recognizes that
this is a matter committed to the sound discretion of the trial judge,
but argues that there was error because other circuits have said it is
desirable to give written instructions. He contends, because of the
numerous, lengthy and complex instructions, written copies of the
instructions were necessary to aid the jury.
We find Engleman's arguments unpersuasive. The rule
in this circuit is well established that whether written instructions
for the jury are necessary is a matter left to the discretion of the
trial judge. United States v. Hill, 589 F.2d 1344, 1352 (8th Cir.), cert.
denied, 442 U.S. 919, 99 S.Ct. 2843, 61 L.Ed.2d 287 (1979); United
States v. Conley, 503 F.2d 520, 522 (8th Cir. 1974). We do not find that
the length or complexity of this trial provides sufficient grounds for
us to reverse the district court.
B. Handy and the Halm Death Scheme to Defraud
1. Severance of the Handy and Engleman Trials
Robert Handy advances several errors in his trial
which he claims justifies acquittal or a new trial. Handy's first ground
for relief is that it was an abuse of discretion for the district court
to refuse to sever his trial from Engleman's. Handy, prior to and on
several occasions during the trial, requested the court for severance
because he was denied the right to a fair trial. He contends that the
evidence received concerning Engleman's conduct, which did not involve
Handy, was highly prejudicial.
The general rule is that persons charged in a
conspiracy are tried together. However, where a defendant demonstrates
that a joint trial will prejudice his right to a fair trial, the court
must sever the trials.
United States v. Jackson, 549 F.2d 517, 523 (8th Cir.), cert. denied,
430 U.S. 985, 97 S.Ct. 1682, 52 L.Ed.2d 379 (1977). The rule laid down
in Jackson is as follows:
It is the general rule that persons charged in a
conspiracy should be tried together, particularly where proof of the
charges against the defendants is based upon the same evidence and acts.
* * * Severance will be allowed upon a showing of real prejudice to an
individual defendant. * * * However, the motion to sever is addressed to
the discretion of the trial court, * * * and a denial of severance is
not grounds for reversal unless clear prejudice and an abuse of
discretion are shown. * * * A defendant must show something more than
the mere fact that his chances for acquittal would have been better had
he been tried separately. * * * He must "affirmatively demonstrate that
the joint trial prejudiced (his) right to a fair trial." * * * Thus,
before the refusal to sever may be deemed an abuse of discretion on the
part of the trial court, prejudice to a defendant's right to a fair
trial must be established. Relying upon these principles, we now turn to
defendant's numerous severance claims.
Id. at 523-24 (citations omitted).
We conclude that the district court abused its
discretion in not severing Handy's trial from that of Engleman. Of
crucial importance is the evidence pertaining to Engleman's involvement
in Frey's death in 1963, and the collection of insurance proceeds. For
example, witness Carter testified that he was nearby when Frey was
killed by an explosion. A few minutes thereafter Engleman stated to
Carter, "I killed him * * * for the insurance." Handy was in no way
involved in this scheme.
Prior to Carter's testimony, Handy renewed his motion
for a severance and requested that in the event it was overruled, that
the court give the same cautionary instructions that the court
previously gave when Carmen Miranda Halm testified five days earlier
regarding the same subject. The court denied both motions stating that
the jury would be fully instructed at the close of the evidence.
It is our view that in this case the evidence
concerning Frey's murder and insurance fraud surrounding it was so
prejudicial that a new trial must be ordered as to defendant Handy.
Failure to renew the cautionary instruction in connection with Carter's
testimony in this lengthy trial only compounded the prejudice.
2. Denial of Motion for Acquittal
Handy argues that it was error for the district court
to deny his motion for a judgment of acquittal based on the argument
that the evidence was not sufficient as a matter of law to establish
that Handy knowingly participated in the alleged conspiracy and scheme
to defraud. Handy contends that there was no direct evidence linking him
to the crime. Also, he argues that the circumstantial evidence in the
case was as consistent with his innocence as with his guilt.
The evidence offered against Handy included testimony
that Ken Copes saw Handy purchase the gun used to kill Halm, that
Engleman told his wife during a discussion of Halm's death that he
needed money to pay Handy, and that Handy affirmed Engleman's statement
to Nicholas Miranda that Handy and Engleman had to run when a dog
discovered them during an earlier attempt to shoot Halm. Additional
evidence included testimony by Mrs. Engleman that in March 1977, Handy
helped Engleman change $10,000 in $100 bills into smaller denominations.
The $10,000 was Engleman's share of the insurance proceeds collected
after Halm's death and delivered to Engleman by Nicholas Miranda in
behalf of Carmen Miranda Halm.
We must view the evidence in the light most favorable
to the verdict, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457,
469, 86 L.Ed. 680 (1942), and we must accept as established all
reasonable inferences that tend to support the verdict. United States v.
Overshon, 494 F.2d 894, 896 (8th Cir.), cert. denied, 419 U.S. 853, 95
S.Ct. 96, 42 L.Ed.2d 85 (1974). In light of all the evidence, especially
that indicating Handy bought the stolen gun which later was used to kill
Halm, and the evidence apparently linking Handy with the financial
aspects of the death, we cannot say that as a matter of law there was
not a submissible case.
In view of our remand for new trial, we note that
Handy argues that it was error for the district court to admit certain
statements by Engleman concerning Handy into evidence under Fed.R.Evid.
801(d)(2)(E). Rule 801(d)(2)(E) allows evidence to be admitted if the
statement is made "by a co-conspirator of a party during the course and
in furtherance of the conspiracy." See United States v. Bell, 573 F.2d
1040, 1043 (8th Cir. 1978). Handy contends that certain testimony was
not "in furtherance of the conspiracy." We particularly note the
contested statement made on February 14, 1980, during the tape recorded
conversation between Engleman and his former wife. During the
conversation, Engleman recounted that he had given the money brought by
Nicholas Miranda to his wife and Handy. Handy contends this statement
was not made in the furtherance of the conspiracy because the conspiracy
had ended in 1977, when the insurance had been collected and Engleman
had been paid. We agree this statement was inadmissible under Rule
801(d)(2)(E) because it was made long after the object of the conspiracy
had been achieved. Although cumulative, the trial court abused its
discretion in admitting such testimony. It should not be admitted on re-trial.
III. ENGLEMAN AND THE BARRERA DEATH (80-1961)
Sophie Marie Barrera owned and operated Barrera Labs,
Inc. in St. Louis, Missouri. In March 1978, Engleman owed the lab
$14,504.37 and, as a result, the lab refused to perform work for
Engleman. Barrera filed suit for the amount and on March 9, 1979, she
received a default inquiry. On March 19, Engleman filed a motion to set
aside the default. On March 20, a partially detonated bomb was found in
the rear garage area of 4241 Hartford in St. Louis, Missouri, where
Barrera kept a 1975 Pinto delivery vehicle used in connection with her
business. The bomb was composed of dynamite which had become wet,
thereby causing only a minor explosion.
Engleman was apparently upset about the suit. On
March 21, 1979, when speaking to his former wife, he admitted that he
was responsible for the attempted bombing of Barrera's property on March
On March 21, 1979, Barrera contacted her attorney and
told him that she preferred to accept any settlement rather than pursue
the default judgment. No steps were taken to secure the default judgment.
Eventually the case was scheduled for trial for the week of January 21,
1980. However, on January 14, Barrera died when a bomb exploded in her
Pinto delivery vehicle. The following evening, while visiting his former
wife, Engleman told her that a TV news story to the effect that three
men dressed in orange uniforms were around the vehicle prior to the
bombing was correct.
An analysis of the bomb scene revealed that a water
gel explosive or dynamite had been used. Pieces of a pressure switch,
similar to those found at the scene of the earlier bombing on March 20,
1979, were found.
In January and February 1980, Engleman's former wife
had several conversations with her former husband which were taped.
Edited versions of the tapes were received in evidence and played for
the jury. Defendant Engleman admitted making the statements on the
tapes. The tapes reveal that Engleman acknowledged a financial gain from
Sophie Barrera's death and stated that she deserved killing. He also
admitted his expertise with explosives.
The first contention Engleman advances in this appeal
is that the district court erred when it admitted evidence concerning
Engleman's alleged involvement in a bombing incident involving Barrera's
residence approximately ten months prior to the later bombing which is
the subject of this prosecution. As discussed earlier, this court in
United States v. Frederickson, supra, 601 F.2d at 1365, restated the
test for determining whether evidence of a prior criminal act is
admissible in a subsequent criminal case.
We conclude that the district court did not abuse its
discretion in admitting the disputed evidence. The prior bombing was
probative of Engleman's motive and intent because the events tended to
correspond with the progression of Barrera's lawsuit against Engleman
and to demonstrate a motive for the bombing. The prior bombing also
tended to show the identity of the person behind the bombings because of
the similarities in the bomb and the detonation switch. See United
States v. Two Eagle, supra, 633 F.2d at 96-97. In addition, the prior
bombing helped to establish a common plan, which provides an alternative
basis for establishing the material issue upon which this evidence was
In light of the fact that the previous bombing was
only ten months prior to the fatal bombing, that it involved the same
victim, and that the explosions were of a similar character, we conclude
the prior act satisfies the second element of the Frederickson test by
being similar in kind and reasonably close in time to the later act. The
circumstances of the prior bombing certainly make the evidence of that
crime clear and convincing, thereby satisfying the third element.
Further, the fourth part of the test is satisfied because the highly
probative value of the evidence in establishing motive, intent, plan,
and identity outweigh any unfair prejudicial impact the evidence might
create. We therefore hold the district court did not abuse its
discretion in allowing evidence to be admitted in connection with the
The second ground urged by Engleman for reversal is
that the tape recordings of conversations between him and his former
wife, and to which she had consented, violated his Fourth Amendment
rights against unlawful search and seizure because he did not consent.
As we have previously held in this opinion, the consent of both parties
is not necessary.
Only one party needs to have consented. See United States v. White,
supra, 401 U.S. at 746-54, 91 S.Ct. at 1123-1127; Durns v. United States,
562 F.2d 542, 547-48 (8th Cir.), cert. denied, 434 U.S. 959, 98 S.Ct.
490, 54 L.Ed.2d 319 (1977); United States v. Jones, 545 F.2d 1112, 1114
(8th Cir. 1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 814, 50 L.Ed.2d
793 (1977); United States v. Quinn, 543 F.2d 640, 648-49 (8th Cir.
1976); United States v. McMillan, supra, 508 F.2d at 104. We conclude
the district court did not abuse its discretion in admitting the tape
recordings into evidence.
In summary, we affirm the convictions of Engleman on
the conspiracy and mail fraud counts involving Halm's death (80-1906)
and the bombing charge count concerning Barrera's death (80-1961). For
the reasons previously stated, we reverse the conviction of Handy
(80-1962) and remand for new trial.
The Honorable William L. Hungate, United States
District Judge for the Eastern District of Missouri, presiding
Engleman was sentenced to an aggregate term of thirty
years imprisonment on the conspiracy and fraud counts. Handy received a
twenty year term of imprisonment
We also note that there is strong reason to hold
intent was placed in issue in light of defendant's theory that the
killing was committed by Carmen Miranda Halm out of passion. This was
placed in issue by defendant Engleman's cross-examination of Carmen
See also Durns v. United States, 562 F.2d 542, 547-48
(8th Cir.), cert. denied, 434 U.S. 959, 98 S.Ct. 490, 54 L.Ed.2d 319
(1977); United States v. Jones, 545 F.2d 1112, 1114 (8th Cir. 1976),
cert. denied, 429 U.S. 1075, 97 S.Ct. 814, 50 L.Ed.2d 793 (1977); United
States v. Quinn, 543 F.2d 640, 648-49 (8th Cir. 1976)
See Schaffer v. United States, 362 U.S. 511, 514-16,
80 S.Ct. 945, 947-948, 4 L.Ed.2d 921 (1960), wherein the Supreme Court
recognized the continuing duty of the court to grant a severance when
prejudice becomes apparent
See text accompanying note 4 supra