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 deliberations.

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 deliberations.

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, 80-1962)

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 proceed.

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 insurance policies.

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 case.

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 Frey's widow.

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 Halm.

A. Engleman and the Halm Death Scheme to Defraud Alleged Errors

1. Testimony Concerning the Eric Frey Death in 1963

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. 1969).

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).

Id. at 104.4 We hold the district court did not abuse its discretion in admitting this evidence.

4

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)