Petition — Kilcullen v. United States

Supreme Coert, U. &

FILED

sep 20 1976

MICHAEL RODAK, JR..CLERK

3u The Supreme Court of The Sule Bates

Ocrosper Term, 1976

No. 76-414

RICHARD KILCULLEN

v.

Petitioner

UNITED STATES OF AMERICA

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Of Counsel:

JOHN SILAS HOPKINS, III

Ropes & GRAY

225 Franklin Street

Boston, Massachusetts 02110

(617) 423-6100

September 21, 1976

JOHN M. HARRINGTON, JR.

Ropes & GRAY

225 Franklin Street

Boston, Massachusetts 02110

(617) 423-6100

Attorney for the Petitioner

INDEX

Page

I TD scininictncsininpninavcitnneneisactnigiiidenceniidpettipaincadlinntinataiidl 1

ET IS APT ETS IEF EL LITT 1

Se I ai cin ncsitibiicbisticaingniniblienaiendmiatmiaitenlid 2

Statutes Involved .............. Siesscsiaseneciiibaidniaehclaailcnicieabieaiilc etait 2

I i 3

REASONS FOR GRANTING THE WRIT

The Decision of the Court of Appeals for the First

Circuit That the Erroneous Charge on an Essential

Element of the Offense Was Not Plain Error

Appears To Be the Only Such Holding Ever Made

and Directly Conflicts with Decisions of Four Other

Circuits and a Plurality Opinion of This Court ...... 6

A. The Error in the Charge to the Jury .................. 6

B. The Conflict Between Cirenits .........0.......cccceeeeeees 7

C. The Conflict with Tirta Cort .....<.cocccccccssescocsocesscee 9

D. The Injustice to the Petitioner ............ eee 10

a Ee ET Pes SS eR ON Ey STE 13

TABLE OF CITATIONS

Cases

Barry v. United States, 287 F.2d 340 (D.C. Cir. 1961) .. 8

Bollenbach v. United States, 326 U.S. 607 (1946) ............ 12

Byrd v. United States, 342 F.2d 939 (D.C. Cir. 1965)... 8

Findley v. United States, 362 F.2d 921 (10th Cir. 1966)... 8

McGee v. United States, 402 F.2d 434 (10th Cir. 1968),

cert. denied, 394 U.S. 908 (1969) ............. EAE 5 ES 7

Mullaney v. Wilbur, 421 U.S. 684 (1975) oc ceeeeeeeee 10

Pauldino v. United States, 379 F.2d 170 (10th Cir. 1967) 7

Prussian v. United States, 282 U.S. 675 (1931) ...........0.. 7

Ross v. United States, 374 F.2d 97 (8th Cir. 1967) ........ 7

ii

Screws v. United States, 325 U.S. 91 (1945) wee 2, 5,9

Streett v. United States, 331 F.2d 151 (8th Cir. 1964) .... 6,7

Strickland v. United States, 339 F.2d 866 (10th Cir.

TUD <itnescssssessnsistvensiionsiinniinaettiaminnsiniiietiiibialaiéubiellc esesiibee 8

United States v. Barrow, 229 F. Supp. 722 (E.D. Pa.

SEPUPTED ‘<cnniewtnincocsasinsmnicccensti sieimiapiniensitiiiandithiiiiteapeiamaataiiasaitiniitads 9

United States v. Boone, 470 F.2d 908 (4th Cir. 1972) ..... 7

United States v. Hutchison, 338 F.2d 991 (4th Cir.

DUTT intaimassnesicsiicaessncehesiebiteidaiminiaiaianicieidiiiigdacie cata ieed stiles 8

United States v. Levy, 153 F.2d 995 (3d Cir. 1946) ........ 8

United States v. Max, 156 F.2d 13 (3d Cir. 1946) ............ 8

United States v. McCray, No. 75-1709 (4th Cir. Dee. 10,

1975), unpublished sce 530 F.2d 971. .....ceccesccecssesssescesees 7

United States v. Noble, 155 F.2d 315 (3d Cir. 1946) ...... 8

United States v. Roby, 499 F.2d 151 (10th Cir. 1974)... 7

United States v. Summerour, 279 F. Supp. 407 (E.D.

Peale. IIIT senstccinineitesiencitehibihheiiichaeetcelieiaiaieaali lege 8

In re Winship, 397 U.S. 358 (1970) .........cccccscsessssseesecsssenes 10

Statutes and Rules

A Re Cn ee ea 6

8 EBS Laie Ne eee Oe mT 2, 6

Uniform Commercial Code

OS IE tial clits diniciisniensninnieiadipciencinriiiiiiiiaiiaiieiiticcaaids 7

Gn SII SETI ncessctcniisiieisiiiasniriiatinaaiinaiiinnaiiniaiaapninabi 7

REISE eee ame eC Ie D 7

SN ai cer eiteidaeitichatlnieilalaltainiila ala NEY 2

|. REE NEN aE Nae Teer a mm Oe 7

Se I wiiceiihtictncendintctecinuiiiicinnadinaneapiatitiniahindiiiasit Maid iatasied 7

Be es I iii ccen ciiiceinipiaididitncitiscsanaiiiniliiataaddaithiites 2, 3, 5, 6, 7

Be Rs Se ID seccidettecntnsntinccciiieninindennnsieniat biataiiendaiitaliinies 1

Iu The Supreme Court of The United States

Ocroser Term, 1976

No.

RICHARD KILCULLEN

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

The petitioner, Richard Kileullen, respectfully prays that

a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the First Circuit entered

on August 31, 1976 in this action.

Opinion Below

The opinion of the Court of Appeals is apparently not for

publication. It appears in the Appendix, infra at A-1 to

A-23.

Jurisdiction

The judgment of the Court of Appeals was entered on

August 31, 1976. (A-24) The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

2

Question Presented

Whether the Court of Appeals erred in holding — without

citation of authority and contrary to decisions of the Courts

of Appeals for the Third, Fourth, Tenth and District of

Columbia Cireuits and to the decision of the four-Justice

plurality of this Court in Screws v. United States, 325 U.S.

91, 107 (1945) — that the District Court’s error in charging

the jury on an essential element of the offense of which the

petitioner was convicted did not constitute plain error

noticeable under Fed. R. Crim. P. 52(b) although not called

to the attention of the District Court.

Statutes Involved

The petitioner was convicted of violation of the third

paragraph of 18 U.S.C. § 2314 and of conspiracy to violate

the same, 18 U.S.C. § 371. The third paragraph of 18 U.S.C.

§ 2314 provides as follows:

“Whoever, with unlawful or fraudulent intent, trans-

ports in interstate or foreign commerce any falsely made,

forged, altered, or counterfeited securities or tax stamps,

knowing the same to have been falsely made, forged, al-

tered, or counterfeited ...

“Shall be fined not more than $10,000 or imprisoned not —

more than ten years, or both.”

Rule 52(b) of the Federal Rules of Criminal Procedure ©

provides as follows:

3

“Plain Error. Plain errors or defects affecting sub-

stantial rights may be noticed although they were not

brought to the attention of the court.”

Statement of the Case

The petitioner was indicted on April 23, 1975, together

with four co-defendants, on two counts of violation of 18

U.S.C. § 2314 and one count of conspiracy to commit the

substantive offense. He was tried to a jury jointly with two

of the co-defendants in November, 1975, and was convicted

on all three counts. The trial court dismissed one of the sub-

stantive counts on the ground that the indictment charged

only a single substantive offense and sentenced the peti-

tioner to two years imprisonment on the two remaining

counts. The petitioner’s four co-defendants have also been

convicted.

The petitioner was attorney for a co-defendant who

transported the allegedly forged checks. The Court of

Appeals held that there was sufficient circumstantial evi-

dence to permit the jury to find heyond a reasonable doubt

that the petitioner knew when he advised and assisted his

client that the checks were forged, although the court

acknowledged that the evidence did not compel such a find-

ing. Since this petition relates solely to the charge on the

forgery issue, the following summary of facts will be lim-

ited to those relevant to that issue.

There were two checks that were the subject of the indict-

ment. Each was drawn to “Jacob Weiner” on the account of

one Charles Brennick in the Coolidge Bank & Trust Com-

pany in Watertown, Massachusetts. Each was in the ainount

of $97,500. Fach was signed “Charles Brennick” in the space

4

for the drawer’s signature. Each was endorsed on the back

‘Jacob Weiner.” They were identical except that one was

numbered 2547 and the other 2548 and one was marked

“Full Payt Note #1” and,the other “Full Payt Note #2.”

A special agent of the FBI who is an expert on questioned

documents testified (1) that the “Charles Brennick” signa-

tures were traced onto the checks from a genuine Charles

Brennick signature and (2) that the check forms had been

produced by photo offset printing from a genuine, filled-in

Charles Brennick check. The expert also testified that he

had attempted to identify who did the tracing, but had been

unable to rule out any suspect including Mr. Brennick him-

self. The only evidence that Mr. Brennick did not trace the

signatures was Mr. Brennick’s own testimony that he did

not sign the checks. The government presented no evidence

as to who had done or procured the printing of the check

forms.

There was evidence that the FBI was unable to find the

payee of the cheeks, “Jacob Weiner,” and Mr. Brennick

testified that he did not know anyone by that name. The

evidence warranted the conclusion that Jacob Weiner did

not exist.

The District Court charged the jury that the first essen-

tial element of the offense with which the petitioner was

charged was that the checks were falsely made, forged or

counterfeited. The court charged further that there were

three ways in which the government could establish this

element. One was the forging of the drawer’s signature.

Another was the counterfeiting of the check forms. The

third was that the endorsements on the checks would be

forgeries if Mr. Brennick had never had any business deal-

ings with anyone named Jacob Weiner and never intended

5

to pay any such person.! Neither the petitioner’s trial coun-

sel nor any other counsel objected to this portion of the

charge nor was any contrary jury instruction requested.

On appeal the petitioner’s counsel raised for the first time

the error in this portion of the charge and argued that the

erroneous charge on an essential element of the offense con-

stituted plain error, citing decisions of the Third, Fourth,

Tenth and District of Columbia Cireuits and the plurality

opinion in Screws v. United States, 325 U.S. 91, 107 (1945).

More than eleven pages of the petitioner’s brief was devoted

to this argument. The government’s brief argued that the

charge was correct and contended that any error was harin-

less, but did not even contend, much less cite any authority

holding, that an erroneous charge on an essential element

of the offense is not plain error. Nevertheless the Court of

Appeals disposed of the petitioner’s entire argument in the

following brief paragraph:

“Kileullen also argues that the court erred in instruet-

ing the jury that they could find the checks were forged

under 18 U.S.C. § 2314 if they found that Brennick did not

know a Jacob Weiner and that the Weiner endorsement

1“If [the government] has satisfied you beyond a reasonable doubt

that there was no Jacob Weiner [the payee] known to Mr. Brennick [the

purported drawer] and that Mr. Brennick had no business with anyone

named Jacob Weiner, if you are satisfied that has been proved beyond a

reasonable doubt, then you could find that the signature of Jacob Weiner

was put on there by some unknown party and that it was for that reason

a forgery. -

“Now, on that question you have (a) the testimony of Mr. Brennick

himself, who testified that he didn’t sign the check; (b) that he didn’t

authorize anyone else to sign his name on it and (c) that he didn’t know

anybody named Jacob Weiner. That is the way I remember it. It is for

you people to decide what Brennick’s testimony was.

“If you believe Brennick’s testimony that he had no business dealings

with anybody named Jacob Weiner, you can find that the check is a

falsely made check. Even though, in fact, there may be some people some

lace in the United States who have the name Jacob Weiner, he would

a fictitious person as far as Mr. Brennick is concerned, if you believe

Brennick’s testimony he never had any business with him and never in-

tended to pay him.”

6

was written by an unknown person. Kilcullen contends

(1) that a forged endorsement is not a forgery under

§ 2314, citing primarily Streett v. United States, 331 F.2d

151 (Sth Cir. 1964), and (2) that under the fictitious payee

rule of commercial law, the endorsement described in the

court’s charge could have been perfeetly valid. We do not

reach cither contention, however, because Kilcullen

neither objected to the challenged instruction nor _re-

quested his own instructions, Fed. R. Crim. P. 30, and we

do not find plain error, Fed. R. Crim. P. 52(b). Whatever

could be said for these contentions, it is hard to believe

that a jury would have found the distinctions of signifi-

cance even had they understood them. Furthermore, the

court, in addition to the instruction in question, charged

alternatively that the jury could find that the checks were

fraudulent if it found (1) that the Brennick signatures

were not made by Brennick or someone acting under his

authority, or (2) that the checks blanks were counterfeit,

i.c., imitations of genuine Brennick checks. There was

more than ample evidence on both these theories.” (A-15

to A-16)

REASONS FOR GRANTING THE WRIT

The Decision of the Court of Appeals for the First Circuit

That the Erroneous Charge on an Essential Element of the

Offense Was Not Plain Error Appears To Be the Only Such

Holding Ever Made and Directly Conflicts with Decisions of

Four Other Circuits and a Plurality Opinion of This Court.

A. The Error in the Charge to the Jury.

The District Court erred in permitting the jury. to find

that the forgery element was satisfied by a forged endorse-

ment. The Court of Appeals for the Eighth Circuit held ina

7

well-reasoned opinion in Streett v. United States, 331 F.2d

151, 153-57 (Sth Cir. 1964), that a forged endorsement does

not satisfy the element of forgery of a check under 18 U.S.C.

§ 2314. The court based its decision on the decision of this

Court in Prussian v. United States, 282 U.S. 675, 678 (1931),

which held that forgery of an endorsement on a government

security does not make the security a forged government

security for purposes of 18 U.S.C. § 471. The decision of the

Fighth Cirenit in the Strectt case has since been followed

by the Courts of Appeals for the Fourth and Tenth Cir-

cuits as well. United States v. McCray, No. 75-1709 (4th Cir.

Dee. 10, 1975), unpublished see 530 F.2d 971; United States

v. Boone, 470 F.2d 908, 910 (4th Cir. 1972); McGee v. Untted

States, 402 F.2d 434, 436-37 (10th Cir. 1968), cert. denied,

394 U.S. 908 (1969); Pauldino v. United States, 379 F.2d

170, 172 (10th Cir. 1967); see United States v. Roby, 499

F.2d 151, 153 (10th Cir. 1974); Ross v. United States, 374

F.2d 97, 102 (Sth Cir. 1967) (contrasting 18 U.S.C. § 495

which does cover a forged endorsement). The Court of

Appeals for the First Circuit gave no reason for not follow-

ing the Strectt case with respect to the petitioner.2

B. The Conflict Between Circuits.

The Court of Appeals affirmed the petitioner’s conviction

despite the erroneous charge on the essential element of

2 The District Court’s charge contained the further error that it per-

mitted the jury to find the checks to be forged on the basis of the endorse-

‘ments under circumstances in which the endorsements would be perfectly

valid. Section 3-405(1)(b) of the Uniform Commercial Code, which is in

force in every relevant state, provides that “[a]n endorsement by any

person in the name of a named payee is effective if a person signing as

or on behalf of a maker or drawer intends the payee to have no interest

in the instrument.” Comment ae to section 3-405 gives as an illustra-

tion of this rule a case where “(t]he drawer of a check, for his own

reasons, makes it payable to P knowing that P does not exist.” While

Comment 5 indicates that “[t]he section is not intended to affect crim-

inal liability for forgery or any other crime,” surely an endorsement is

not forged if the drawer makes the check out to a fictitious oe de-

livers it to an actual person whom he authorizes to endorse it and the

deliveree in fact endorses it in the name of the fictitious payee.

8

forgery because ‘‘we do not find plain error.” (A-15) With

these six words, supported neither by analysis nor by cita-

tion of authority, the court put itself into conflict with at

least four other circuits. The Third, Fourth, Tenth and Dis-

trict of Columbia Cireuits have all held that an error in

charging the jury on an essential element of the offense

charged is so fundamental to the fairness of a criminal trial

as to constitute plain error. United States v. Levy, 153 F.2d

999, 999 (3d Cir. 1946) (“It was error of the highest degree

to submit the case to the jury without adequate instructions

as to the law allegedly violated by the defendant on trial and

impels the reversal of the judgment.”); United States v.

Noble, 155 F.2d 315, 316-17 (3d Cir. 1946); United States v.

Maz, 156 ¥.2d 13, 16 (3d Cir. 1946) ; United States v. Hutch-

ison, 338 F.2d 991-92 (4th Cir. 1964); Findley v. United

States, 362 F.2d 921, 922-28 (10th Cir. 1966); Barry v.

United States, 287 F.2d 340, 341 (D.C. Cir. 1961) (neither

was objection made to the charge nor was an appellate argu-

ment made on the issue : “Counsel for the accused in neither

the District Court nor in this court made any point of the

omission. But the responsibility of instructing the jury upon

the essential elements of a crime rests upon the court. Fail-

ure to meet this special responsibility of the court itself

need not be overlooked by an appellate court because over-

looked by counsel.”) ; Byrd v. United States, 342 F.2d 939,

941 (D.C. Cir. 1965) (“It was fundamental error to send

the case to the jury without instructions as to the elements

of the offense which the Government must prove beyond a

reasonable doubt before a verdict of guilty can be re-

turned.”) ; accord United States v. Summerour, 279 F. Supp.

407, 410 (F..D. Mich. 1968) ; see Strickland v. United States,

339 F.2d 866, 868 (10th Cir. 1965) (“Where an error is so

fundamental as not to submit to the jury an element of the

offense, or where conviction was had without proof of one

of the elements, it is necessary that the appellate court take

9

notice although not properly raised at trial.” (emphasis

supplied) ).

Twelve years ago in granting a motion for a new trial on

the ground that the jury had been misinstructed on the law

of conspiracy, Judge Joseph Lord wrote :

“We can find no case which holds that the failure to

charge on essential elements is not plain error.” United

Siates v. Barrow, 229 F. Supp. 722, 734 (.D. Pa. 1964).

Neither the government in its brief nor the Court of Ap-

peals in its decision cited any such case. And our research

has turned up nothing to indicate either that Judge Lord’s

research was incomplete or that the law had changed in any

way between 1964 and August 31, 1976. The six words of

the Court of Appeals for the First Cireuit — ‘‘we do not

find plain error” — now stand alone as the only holding ever

that an erroneous instruction on an essential element of the

offense is not plain error. The conflict between circuits is

all the more worthy of this Court’s resolution in view of the

Court of Appeals’ cavalier treatment of an issue so funda-

mental to the fairness of the criminal process.

C. The Conflict with This Court.

The decision of the Court of Appeals in the petitioner’s

case would be remarkable enough were it in confli®t only

with the decisions of four other courts of appeals. But it is,

in addition, in conflict with the opinion of the four-Justice

plurality of this Court in Screws v. United States, 325 U.S.

91, 107 (1945) :

“It is true that no exception was taken to the trial

court’s charge. Normally we would under those cireum-

10

stances not take note of the error. But there are excep-

tions to that rule. And where the error is so fundamental

as not to submit to the jury the essential ingredients of

the only offense on which the conviction could rest, we

think it is necessary to take note of it on our own motion.

ven those guilty of the most heinous offenses are en-

titled to a fair trial. Whatever the degree of guilt, those

charged with a federal crime are entitled to be tried by

the standards of guilt which Congress has prescribed.”

(lmphasis supplied; citations omitted)

Moreover, this Court held in Mullaney v. Wilbur, 421 U.S.

684, 704, 705 (1975), and In re Winship, 397 U.S. 358, 364

(1970), that the Constitution requires that the prosecution

bear the burden of proving every element of the offense

charged beyond a reasonable doubt. The prosecution can

hardly carry that burden when the jurors are misinstructed

as to what the elements are.

D. The Injustice to the Petitioner.

The petitioner was convicted on evidence on which the

Court of Appeals conceded that juries might differ as to

whether or not he was guilty. (A-11) Moreover, he was con-

victed on the basis of a charge that permitted the jury to

return a guilty verdict even in the absence of proof of an

essential element of the offense. And his conviction was

affirmed on appeal because the Court of Appeals refused to

consider the merits of his claim. For a man to lose two years

of his life and his license to practice his profession on such

a basis would be unjust under any circumstances. In this

case the injustice is magnified by the real possibility that a

correct charge would have led the jury to aequit.

11

As previously indicated, the only evidence that Charles

Brennick did not trace his own signature onto the allegedly

forged checks was his own testimony. And to put it mildly,

Mr. Brennick is not one of the pillars of the community.

During the course of the trial Mr. Brennick admitted that

he was playing fast and loose by transferring funds of

nursing homes in which he had partners into and out of his

personal bank account. He also admitted paying substantial

gambling losses out of that account in such a way as to

conceal the nature of the payments. And he admitted that

during 1973 alone he had removed $600,000 to $700,000 from

the account and put it in “a very safe place”. Reasonable

jurors might well doubt the honesty of such a witness.

Perhaps his most telling admission related to the manner

of his payment of gambling losses. He lost money at

Caesar’s Palace and paid off his losses with checks made out

to “Charles Peterson” or “George Peterson.” No Charles

Peterson or George Peterson existed; the checks were in-

tended for, and endorsed and cashed by, Caesar’s Palace.

The jury could well have believed (or at least suspected)

that Mr. Brennick had engaged in a similar scheme in this

case by making checks out to “Jacob Weiner,” delivering

them to a creditor and then defrauding his insurance com-

pany by claiming that he had been the victim of a forgery.

On a correct charge such a belief or suspicion on the part

of the jurors would have led to the petitioner's acquittal.

But on the district court’s charge it simply supported his

conviction. Indeed, to conviet the petitioner on the District

Court’s erroneous charge, the jurors were not required to

credit a single word of Mr. Brennick’s testimony. They were

told, in essence, that they could find a forgery if no Jacoh

Weiner existed; and to conclude that he did not exist, they

needed only to accept the testimony of a special agent of

12

the FBI that the FBI, despite efforts to do so, had been

unable to locate any Jacob Weiner.

The Court of Appeals, perhaps out of recognition that the

record would not support such a ruling, failed to accept the

government’s position that the error was harmless. Never-

theless, the court appears to have based its decision on a

feeling that there was sufficient evidence that the petitioner

did something bad and on its remarkable statement that

the error didn’t really matter because the jurors wouldn’t

have understood a correct instruction anyway :

‘Whatever could be said for these contentions, it is hard

to believe that a jury would have found the distinctions of

significance even had they understood them.” ( A-15)

It has always been the law, as Mr. Justice Frankfurter

reminded the government thirty years ago, that in our sys-

tem of criminal justice guilt is determined by properly-

instructed juries, not by appellate courts.

“In view of the Government’s insistence that there is

abundant evidence to indicate that Bollenbach was im-

plicated in the criminal enterprise from the beginning, it

may not be amiss to remind that the question is not

whether guilt may be spelt out of a record, but whether

guilt has been found by a jury according to the procedure

and standards appropriate for criminal trials in the fed-

eral courts.” Bollenbach v. United States, 326 U.S. 607,

614 (1946).

If so fundamental a principle is to be changed, the change

should be made by a decision of this Court available to the

13

people, not by private decisions of the courts of appeals

that are withheld from publication.

Conclusion

For the reasons stated, this petition for a writ of certiorari

should be granted.

Respectfully submitted,

JOHN M. HARRINGTON, JR.

Of Counsel: Ropes & GRAY

225 Franklin Street

JOHN SILAS HOPKINS, Ill Boston, Massachusetts 02110

Ropes & GRAY (617) 423-6100

225 Franklin Street

Boston, Massachusetts 02110 Attorney for the Petitioner

(617) 423-6100

September 21, 1976

Thayer-Dearing Company Legal Printers Boston

APPENDIX

United States Court of Appeals

For the First Circuit

No. 76-1022

UNITED STATES OF AMERICA

APPELLEE,

v.

RICHARD KILCULLEN,

DEFENDANT, APPELLANT.

No. 76-1023

UNITED STATES OF AMERICA

APPELLEE,

v.

FRANCIS ASHBY REDDALL, JR.

DEFENDANT, APPELLANT.

APPEALS FROM

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

{Hon. Anprew A. Carrrey, U.S. District Judge}

Before Corrin, Chief Judge,

McEnrer and CaMpseE.L, Circuit Judges.

John Silas Hopkins, 111, with whom John M. Harrington, Jr., Ropes &

Gray, Robert Felleman, and Felleman & Lutch were on rief, for Richard

Kilcullen, appellant.

David A. Mills, appointment of the Court, with whom Walter J.

H , and George tggina, Inc. were on brief, for Francis Ashby

Ir. appellant.

Henry H. Hammond, Assistant United States Attorney, with whom

James N. Gabriel, United States Attorney, was on briefs, for appellee.

August 31, 1976

Appenpix 2

CaMpBELL, Circuit Judge. Richard Kileullen and Francis

Ashby Reddall, Jr., were convieted by a jury of the inter-

state transportation of two forged, falsely made, and counter-

feit checks, in violation of 18 U.S.C. § 2314 and § 2, and of

conspiracy to commit that offense, 18 U.S.C. § 371. They

were indicted with three others, kdward Lloyd Street, Carl

Thomas Bannon, Jr., and Jerome Fleet Cowden, but were

tried only with Bannon. !

On appeal, Kileullen and Reddall contend that the evidence

was insufficient to support their convictions. Kileullen also

contends that the court’s instructions to the jury were erro-

neous, and Reddall asserts error with respect both to the

order of presentation of evidence and the introduction of

certain exhibits. We affirm the judgments below.

I

The crimes charged related to the transportation between

Boston and New York City of two checks, each for $97,500,

that were purportedly drawn by one Charles Brennick and

endorsed in blank by the payee, one Jacob Weiner. As it

turned out, the checks and Brennick’s signature were fraudu-

lent, and the payee non-existent. Codefendant Reddall, Bren-

nick’s hookkeeper, was allegedly the insider who helped

arrange and cover up the fraud, while the others, including

Kilcullen, allegedly played various roles in transporting and

depositing the checks and syphoning off the proceeds.

We first consider the case against Kileullen, setting forth

the evidence in a light most favorable to the Government.

itlasser v. United States, 315 U.S. 60, 80 (1942). Kileullen, a

! After the jury verdicts were returned, the court entered Jp iy

of acquittal on one of the two substantive counts, on the ground that the

- ee transportation of two checks amounted to only one substantive

offense.

Kilcullen, Bannon, and Street all testified at trial. Previously tried and

convicted for his participation, Street was called by the Government,

claimed his fifth amendment privilege, and finally testified upon receiving

a grant of immunity, 18 U.S.C. § 6003.

Appennix 3

respected New York attorney, helped arrange for the deposit

of the two checks in a New York bank and was an advisor

and confidant of Street, the man who brought the checks to

New York from Boston and later negotiated them. The evi-

dence is undisputed that Kilcullen knew of the checks and

was privy to many of the activities of Street and others, but

Kileullen maintains that he was unaware that the checks were

fraudulent. The principal question, therefore, is whether

there was enough evidence from which the jury could find

beyond a reasonable doubt that Kilcullen knew that the two

checks, at the time they were transported, were bad.

In December, 1973, Kileullen had just become associated

with a well-regarded Jaw firm in New York City after having

given up a partnership practice of his own. The jury could

have found that, at this time, he was in some financial

trouble, owing money to several creditors. Kilcullen had since

1971 known Street — Street being an entrepreneur of sorts

and an insurance salesman who lived in Massachusetts.

Street and Kilcullen had collaborated in a number of unsuc-

cessful business ventures.

One of Street’s ventures consisted of the purchase early

in 1973 of the charter of the Island and Overseas Bank, Ltd.

(IOB) of Tortola, British Virgin Islands. IOB was a corpo-

rate shell, without paid-in capital, assets, or employees. By

December of 1973, Street had defaulted on the payments due

the person from whom he had purchased the bank, although

the seller, according to Street, had not-rescinded the trans-

action as authorized in case of default. While Kilcullen was

to hold himself out as Secretary of IOB, and testified that he

satisfied himself as to its bona fides, he denied any knowledge

whatever of the shaky status of Street’s purchase arrange-

ments.

On December 3, 1973, Street travelled to New York City

and, in company of Kilcullen, opened an account for IOB at

a branch office of Bankers Trust Co. (Bankers). A check for

$1200, later returned as drawn against insufficient funds, was

Aprenpix 4

deposited in the new account. Kileullen, whose law firm was

located in the same building, and was a very good account of

Bankers, introduced Street to Littlejohn, the branch man-

ager, and Kilcullen signed the signature card as Secretary of

IOB, Street signing as President. (After the account was

opened, Littlejohn called the managing partner of Kilecullen’s

law firm who verified that Kileullen had joined the firm

earlier that year and vouched for his integrity.) Littlejohn

testified to being told by Street that the account would be

very inactive, and that LOB had $1,000,000 paid-in capital.2

After opening the account, Street and Kileullen continued to

meet on other matters, and Street then returned to Boston.

On Deceinber 6, a few days after the IOB account had been

opened, Street testified to being asked by codefendant Ban-

non to perform some work for the client of an attorney whom

Bannon knew.3 The “work” consisted of processing two

checks and retaining and distributing the proceeds as ordered,

Street expressed interest and suggested a tentative $10,000

fee. A meeting with this attorney was arranged for the fol-

lowing day, a Friday, at Bannon’s office in Boston. Later that

afternoon or evening Street called Kileullen in New York to

sketch out this proposal and get Kileullen’s advice. Kileullen

advised that he saw no problems, cautioning Street only to be

sure to have the attorney identify himself and vouch for his

client. 4

—_—-——_ _ —_

2 Though denied by Kilcullen in his own testimony, this representation

was recorded by Littlejohn in an intra-office memorandum dated December

3, which was introduced at trial. On cross-examination, however, Littlejohn

conceded that it was possible that Street had said only that IOB had

$1,000,000 authorized capital, not paid-in capital. Littlejohn understood, in

= event, that IOB was not a sizeable bank and that it had “very mini-

mal” assets.

3 Bannon, a business associate of Street, was a “money broker”. His

business involved arranging loans and similar financial transactions for

clients. Street had visited Bannon at his office several times during the

past three or four months, and often talked to him on the telephone.

4 Kilcullen testified that he phoned Littlejohn the next morning to wet

Littlejohn’s opinion as a banker of the proposed transaction. Littlejohn

saw no problems, according to Kilcullen. Littlejohn in his testimony did

not, however, refer to any such phone call. Indeed, his testimony that he

himself called Kilcullen on the tenth to question Street’s deposit of two

checks, ace text infra, would su t that he had no advance notice of the

transactions and that Kilcullen had not called him on December 7.

<= =

Appenpix 5

The meeting on the following day, December 7, was, ac-

cording to the testimony, brief. The attorney, codefendant

Cowden, allegedly produced personal identification, had

Street produce the same, and then gave Street two checks,

each for $97,500. The checks, identical except for their serial

numbers, were drawn on the Watertown, Massachusetts, bank

account of a Charles Brennick; were apparently signed by

Brennick; and were payable to and endorsed in blank by a

Jacob Weiner. They were post-dated December 10, a fact

which Street testified he did not notice until a couple days

later. Cowden, according to Street, identified Weiner as his

client and vouched for the genuineness of the endorsements.

Street did not inquire why Weiner was seeking his services

to negotiate the checks.5

After the meeting broke up, Street telephoned Kilcullen

again and reported that Cowden had identified himself ade-

quately and had asked Street to deposit two checks and then

await further instructions. Kilcullen testified that Street also

said how much the checks were for, and may have said that

IOB would receive $5,000 to $10,000 for its services. (Kil-

cullen conceded in other testimony that this seemed to be an

unusually large fee.) They did not discuss any fee for Kileul-

len for his services in this transaction.

There was evidence by an FBI handwriting expert that

the two checks were written on counterfeit blanks copied

from used, genuine Brennick forms, and that the Brennick

signatures had been traced from originals. Brennick testified

at trial that he had neither written the signatures nor author-

ized anyone else to write them. He also stated that he did not

5 There were varying accounts, mostly in the course of changes in

Street’s own testimony, regarding what services Street was engaged to

rform and what arrangements were made for his fee. Street testified

hat Bannon, during the initial phone call on December 6, had said there

was a ibility that Street would be asked to transfer the funds over-

seas. re was also testimony by Street that at this meeting he and

Cowden did not discuss any services to be performed by Street other than

—_ iating the checks and disbursing the proceeds; and contrary

testimony Street that they did discuss the —— of different forms

of investment for the proceeds of the checks. The jury could have believed

from all this that Street was employed to perform no more than the sim-

ple tasks of negotiation and disbursement.

AppENDIXx 6

know any Jacob Weiner (nor was the FBI able to locate any

such person in the course of its investigation).

On Monday, December 10, Street returned to New York

with the two Weiner checks and deposited them at Bankers.

He looked in on Kilcullen afterwards, ostensibly on other

business, before returning to Boston. While Street was in

Kileullen’s office, Cowden phoned from Boston and spoke to

both Street and Kileullen to confirm that the checks had been

deposited. Street again told Kileullen that LOB could stand

to receive $5,000 or $10,000 for the transaction.

Later that day, according to Littlejohn’s testimony, he

phoned Kileullen and repeated his understanding that the

account was to be inactive. Kilcullen assured him that the

transaction was entirely legitimate. 6

A few days later, on December 12 or 13, Street and Bannon

discussed fees. A total figure of $35,000 for the transaction

was mentioned — $25,000 for Bannon and $10,000 for 1OB.7

Kileullen was not present, and he and Street testified that

these sums were not brought to Kileullen’s attention until

later.

On December 17, Cowden called Kileullen. He said that

Weiner wanted some of his money, and asked Kilcullen to

have Street contact him. (Street’s telephone service had been

discontinued because of non-payment of bills, and Street tes-

tified that he would call Kilcullen in New York once or twice

daily for messages.) Kilcullen advised Street that Weiner

wanted about half the money, and Street then called Cowden

who supposedly said that Weiner wanted $80,000, and that

the balance was to be retained. Cowden confirmed that

$35,000 was acceptable for the fees. Street called Kilcullen

back later and told him that Cowden had confirmed a $10,000

fee for LOB, but not, Street testified, that Bannon was to

6 Kilcullen denied receiving this telephone call. See note 4 supra.

7 There was considerable testimony, some of it evasive and contradic-

tory, as to whether Bannon’s $25,000 was a line of credit, i.e. a loan, or an

outright fee.

eee

‘

4

Appenpbix 7

receive $25,000. The two Weiner checks had in fact cleared

that very day, and so the proeceds at Bankers were available

for withdrawal in accordance with Cowden’s request.8

The next day, December 18, Street returned to New York

and Bankers. Street first stopped by Kilcullen’s office, saying

that he was on his way to pick up cashier’s checks and that he

planned to open an account in Boston with them. He then

went downstairs and withdrew $100,000 in ten $10,000 cash-

ier’s checks, payable to the Lincoln Trust Company.9 Street

also wrote five checks on the [OB account: two payable to

himself, each for $2,000; two payable to Kilcullen, each for

$2,000; and one payable to Kileullen’s law firm, for $1,000. Of

the two checks to Kilcullen, one was asserted to be a personal

loan! and one part payment for legal services which Kil-

cullen had rendered to Street in the past (the full amount

owed supposedly totalling around $50,000).

The following day, December 19, back in Massachusetts

Street opened a savings account in his own name at the

Marshfield branch of the Lincoln Trust Co. He testified that

“[w]e were planning to open up a commercial account” but

because of state limitations on commercial savings accounts

it was decided to open a personal account (the use of “we”

was explained as meaning IOB and himself). Street at first

left all ten checks at the bank, but retrieved one and gave it

to Bannon after learning that there would be a delay before

he could withdraw funds. Immediately after making the de-

posit, Street informed Kilcullen, Cowden, and Bannon of the

fact by telephone. Street then encountered unexpected diffi-

culty withdrawing funds from the account, possibly, the jury

might have believed, because personnel at the bank had

8 Kilcullen testified that Littlejohn called him on the seventeenth to

tell him the checks had cleared, and that he in turn had relayed the infor-

mation to Street. Littlejohn did not recall making such a call.

9 Littlejohn testified that Street was accompanied by Kilcullen. Both

Street and Kilcullen testified that Street was alone.

10 There was testimony that this loan was payable on demand and

secured by a note of Kilcullen; however, the note was not introduced at

trial and, by the time of trial, the loan had not yt been repaid. Kilcullen

testified that he had not repaid it since demand had not yet been made

presumably by Street, acting for IOB.

Appenpbix 8

earlier had trouble collecting a delinquent account from

Street, and may have been startled at his sudden wealth. Al-

though the nine checks were cashier’s cheeks, Lincoln Trust

insisted upon wvitten confirmation from Bankers first. Con-

firmation was not forthcoming until December 27, eight days

later. In the meantime, Street pressed Lincoln Trust to re-

lease at least some of the money, saving that he had to meet

a “payroll”. Phone calls passed among Street, Lincoln Trust,

Bankers, Cowden, and Kilcullen, and visits were paid by

Street to Lincoln Trust and by Kileullen to Bankers, all to

attempt to expedite matters and all seemingly to no avail.

Because Cowden was allegedly in a hurry, Street wrote two

checks for Cowden totalling $25,000 on funds remaining in

the [OB account at Bankers for part of the requested $80,000.

Finally on December 27, the cashier’s checks cleared, and

Street immediately withdrew, in cash, the balance of Cow-

den’s request, $55,000, and delivered the cash to Cowden by

the side of a highway in Marshfield or nearby Pembroke,

Massachusetts. Street called Kileullen in New York both be-

fore and after this delivery to Cowden, purportedly because

Street wanted to keep someone informed of his whereabouts

while he was carrying so much cash. When Street called Kil-

cullen back after the delivery, Kilcullen asked Street to come

down to New York that afternoon. Street did and Kilcullen

had him run through the entire transaction. It was then,

Street testified, that he told Kileullen that $35,000 had been

set aside in fees for this transaction. At this time, Kileullen

requested and received from Street a check for $10,000 writ-

ten on the IOB Bankers account. According to Street’s and

Kileullen’s testimony, this was an unsecured loan to Kileul-

len, Street deeming Kilcullen a good eredit risk for IOB to

lend money to. 11

1! There was testimony that the preceding April Kilcullen had bor-

rowed $10,000 from an acquaintance, promising to repay it in two or three

weeks. He had not repaid by December, however, by which time liens had

been levied against his house for other debts. In November, the lender ad-

vised Kilcullen that he intended to initiate proceedings to attach Kilcullen’s

interest in his former law partnership. Proceedings were begun, but were

terminated when Kilcullen ‘paid off the loan in late December after receiv-

ing the $10,000 from Street.

AprEenpix 9

Street wrote a number of other checks on the [OB account

and made other withdrawals from the Lincoln Trust account

during this period. Suffice it to say, without detailing them,

that the amounts payable either to himself or for what appear

to have been his personal expenses well exceeded his alleged

$10,000 fee.

II

We turn to Kilcullen’s assertion that the evidence was in-

sufficient to show that by December 10, when Street trans-

ported the checks interstate from Massachusetts to New

York, Kilcullen knew they were forged, fraudulent or coun-

terfeit. 12

Before examining the evidence, however, we first consider

the effect, if any, of Kilcullen’s failure at trial to lay the

required predicate to an evidentiary challenge. In order to

challenge the sufficiency of the evidence after a criminal con-

viction, the appellant must first have moved for acquittal at

trial. E.g., United States v. Czaplickt, 446 F.2d 640 (9th Cir.

1971) ; United States v. Haney, 429 F.2d 1282 (5th Cir. 1970).

Kileullen moved for acquittal at the close of the Govern-

ment’s case, and that motion was denied. But he did not

renew his motion after he and codefendant Bannon had com-

pleted putting in evidence in their defense. Kilcullen acknowl-

12 Kilcullen also contends that the court did not adequately inform the

jury, in its instructions, that guilty knowledge had to be established as of

the time of the interstate transportation. However, when explaining the

elements of the offense, the court instructed that the Government had to

prove that “at the time the defendants acted, if you find they caused the

transportation of the checks across state lines, that they knew the checks

were fo or counterfeited or falsely made”. Given this express instruc-

tion, and reading the charge in its entirety, we hold it was adequate.

Counsel did not, moreover, register an express objection before the jury

retired as required by Fed. R. Crim. P. 30. We do not rest on this point,

because the record contains some suggestion that the court may have cut

counsel short in the process of requesting a reinstruction, conceivably al-

though not necessarily on this point. But on any construction, we do not

find reversible error.

Kilcullen also contends, in this same vein, that the Government relied

primarily on “post facto” evidence of knowledge, i.e., evidence tending to

show only that he knew the checks were fraudulent after the interstate

transportation had occurred. However, the Government’s evidence was not

wholly “post facto”, see text infra, and events subsequent to the interstate

transportation were germane to the issue of Kilcullen’s prior knowledge.

Appenpix 10

edges that “there are cases that hold a failure to renew such

a motion by a defendant who has presented evidence to con-

stitute a waiver of the motion, e.g., United States v. Larson,

007 F.2d 385, 387 (9th Cir. 1974)”. This circuit happens to be

one of the many where this rule is well established. Malatkof-

ski v. United States, 179 F.2d 905, 910 (1st Cir. 1950) ; accord,

United States v. Childress, 347 ¥.2d 448 (7th Cir. 1965), cert.

dented, 384 U.S. 1012 (1966); United States v. Manos, 340

I’.2d 534 (3d Cir. 1965) ; Lucas v. United States, 325 F.2d 867

(9th Cir. 1963) ; Hughes v. United States, 320 F.2d 459 (10th

Cir. 1963), cert. denied, 375 U.S. 966 (1964) ; Jasso v. United

States, 290 F.2d 671 (5th Cir.), cert. dented, 368 U.S. 858

(1961); see also Maffei v. United States, 406 U.S. 938 (1972)

(Douglas, J., dissenting from the denial of certiorari) ;

United States v. Calderon, 348 U.S. 160, 164 n.1 (1954); 2 C.

Wright, Federal Practice and Procedure § 463 (1969).

Kileullen attacks the rule, and argues that it should be

replaced by one to the effeet that a conviction based on legal-

ly insufficient evidence is invariably plain error. United

States v. McIntyre, 467 ¥.2d 274, 276 n.1 (Sth Cir. 1972),

cert. denied, 410 U.S. 911 (1973). Cf. United States v. Rizzo,

416 V.2d 734, 736 n.3 (7th Cir. 1969); Cephus v. United

States, 324 F.2d 893 (D.C. Cir. 1963); Comment, The Motion

for Aequittal; A Neglected Safeguard, 70 Yale L.J. 1151

(1961); 8A Moore’s Federal Practice J 29.05 (2d ed. 1976).

But while doubtless no court would sustain an essentially un-

founded conviction, we think it correct to insist that eviden-

tiary challenges be put in the first instance to the trial judge,

who is in the best position to rule on such matters; and when

this is not done, the appellant must then demonstrate “clear

and gross” injustice, Malatkofski v. United States, supra, or

“manifest injustice” before the conviction is overturned on

that ground. United States v. Principe, 482 F.2d 60, 61 n.1

(ist Cir. 1973); accord, United States v. Larson, 507 F.2d

385 (9th Cir. 1974); United States v. Croxton, 482 F.2d 231

(9th Cir. 1973); O'Neal v. United States, 411 F.2d 131 (5th

Aprenpix 11

Cir.), cert. denied, 396 U.S. 827 (1969); Corbin v. United

States, 253 F.2d 646 (10th Cir. 1958).

Here we do not find manifest injustice and, indeed, we do

not, even under the ordinary standard, find the evidence of

Kileullen’s timely guilty knowledge so inadequate that “a

rational juror drawing reasonable inferences .. . from the

evidence viewed in the light most favorable to the govern-

ment ... could [not] have found guilt beyond a reasonable

doubt”. Villarreal Corro v. United States, 516 F.2d 137, 140

(ist Cir. 1975) (citations omitted). The circumstantial evi-

dence which tended to show guilty knowledge did not, to be

sure, compel a finding of such knowledge. See United States

v. Klein, 522 F.2d 296, 302 (ist Cir. 1975). But we think that

reasonable jurors, considering all the evidence, could be con-

vinced beyond a reasonable doubt that Kilcullen was impli-

eated in the criminal plan by the early part of December

when the transportation occurred. United States v. Cruz

Pagan, No. 75-1312, -13, -14, slip op. at 7-8 (1st Cir., June 10,

1976), citing United States v. Currier, 454 F.2d 835, 838 (1st

Cir. 1972); Dirring v. United States, 328 F.2d 512, 515 (1st

Cir.), cert. denied, 377 U.S. 1003 (1964).

Many factors lead to this conclusion, no one of which is

dispositive, but certainly one of the most compelling indicia

of guilt is the disparity between Kilcullen’s self-characteriza-

tion as playing merely a lawyer’s role, and the palpable irreg-

ularity, not to say bizarreness, of the transactions he

endorsed. In continual contact with Street, he participated

personally in the rapid disappearance of the funds which his

“client” was supposedly holding for another, himself de-

manding and taking $14,000 from the proceeds of the two

Weiner checks. He and Street asserted that the $2,000 Kil-

cullen received was payment for past legal services and

_ $12,000 was loaned. Possibly the $2,000, by itself, would have

seemed proper, as it was ostensibly taken out of Street’s own

$10,000 fee (assuming that this sizeable fee could be ex-

plained). The remaining $12,000, however, could only have

Aprenpix 12

come out of the proceeds which Street was holding for

Weiner, ostensibly, if Street’s and Kileullen’s stories are

believed, in some sort of fiduciary role. Calling these pay-

ments bank loans scarcely purges them of taint. Kileullen, an

experienced corporate lawyer and former Harvard Law Re-

view editor, would have known that he was borrowing money

that he had no right to take and that his client had no busi-

ness advancing. The notion that these were bank deposits

which Street could legally loan at will to impeeunious friends

seems an obvious absurdity, especially coming from one with

Kileullen’s background and training.

That Kileullen was, in addition, experiencing financial dif-

ficulties provided the jury with additional circumstantial evi-

dence of his involvement in these transfers. As of trial, the

loans had not been repaid. Given the evidence of Kileullen’s

other overdue obligations, the jury could have inferred that

he never intended to repay these sums at all, leading to the

further conclusion that Kilcullen either was a participant in

the forgery scheme and was entitled to a share of the take,

or else at least realized that the checks were fraudulent and

therefore did not fear any legal recourse from the perpetra-

tors of the crime, lest they reveal their own complicity. While

Kileullen’s personal reeeipt of funds oceurred after the date

of the interstate transportation, there were faets from which

to relate this evidence of knowledge and complicity back to

events earlier in the month.

Indeed, the circumstances surrounding the December 3

opening of the LOB aecount were themselves somewhat sus-

pect. The jury could have believed that Street lied to Little-

john that TOB had $1,000,000 paid-in capital when he opened

the account, and that Kileullen stood by silently. As the ac-

count was opened the day the Brennick loan was due, see

infra; as its opening seemed tailored to what later happened ;

as Street and Kilcullen were close friends; as Street’s rela-

tionship with IOB was clouded; and as the need for such an

aceount at such time must surely have been a question in Kil-

Appenorx 13

cullen’s mind at the time he helped Street open it, the jury —

putting these facts together with many others — might infer

that Kileullen’s participation in opening the account was not

merely that of a lawyer helping a client.

There was also contradictions between Kileullen’s and

Littlejohn’s testimonies. Littlejohn testified that he phoned

Kilcullen on December 10 after Street had deposited the

checks; Kileullen denied this. Kileullen testified that he

cleared the transaction ahead of time with Littlejohn on De-

cember 7; while Littlejohn did not mention a call on that date,

it would have been inconsistent with the December 10 call

which he did relate. See note 4,. supra. Littlejohn testified

that Kilcullen accompanied Street when he withdrew the

$100,000; Kileullen denied this. Viewing the evidence in the

light most favorable to the Government, the jury could have

believed Littlejohn. These were relatively minor occurrences

and substantively would be far from conclusive of guilt, but

the contradictions had the effect of impeaching Kilcullen’s

credibility. Furthermore, the differences in Kileullen’s and

Littlejohn’s accounts were not neutral: Kileullen’s version

tended to favor his claim of innocence by suggesting that

Littlejohn himself had given his approval to the proposal

which Bannon and Cowden allegedly had made to Street and

by minimizing Kileullen’s own direct involvement. The jury

could have inferred that Kileullen was reshaping certain de-

tails in order to paint himself in the best possible light be-

cause he indeed did have something to hide.

We note a few other bits of telling evidence which, taken

together, further enshroud the events of which Kilcullen ad-

mitted he was aware in a suspicious light. There was the

$10,000 fee paid to Street simply for cashing two checks and

holding the proceeds. There was the fact that Street was

given two checks totalling $195,000 and endorsed in blank by

an attorney whom he had never met (and whom Kilcullen

said he looked for but could not find in Martindale & Hub-

bell). There was Kilecullen’s own testimony that it was not

Aprenpix 14

consistent with New York banking law for a bank without

paid-in capital to engage in financial transactions such as

IOB was engaging in. And there was the extremely close

association between Street and Kileullen, despite their resi-

dences in Massachusetts and New York, (to the point that

messages for Street in Boston were phoned in to Kileullen in

New York, at a time when both were financially strapped).

Street, to whom the evidence pointed even more strongly

than it did to Kileullen,!13 seems to have consulted with Kil-

cullen almost daily, and shared with him practically every

twist and turn in the chain of events. The jury could have

concluded that Street also shared with Kilcullen his guilty

knowledge.

There is finally the fact that Kilcullen voluntarily took the

stand, giving the jury an opportunity to hear his story and

determine his credibility. As noted, some of his testimony

clashed with Littlejohn’s testimony, and there were other

parts that were cither contradicted by other evidence or were

cireumstantially implausible: that Kilcullen was not himself

in financial straits, that he could see nothing wrong with tak-

ing checks for himself from the money Street was holding;

that others of the bizarre events of December were, in effect,

normal, everyday matters in the life of a reputable corporate

lawyer. It has been said

‘Nor can there be any question that if the jury were

satisfied from the evidence that false statements in the case

were made by defendant, or on his behalf, at his instigation,

they had the right not only to take such statements into

consideration in connection with all other circumstances

of the case in determining whether or not defendant’s con-

13 There were Street's misrepresentations to Littlejohn concernin

IOB’s financial standing; the excessive fee which Street himself propose

and received; the even more excessive $35,000 total fee; the fact that a

complete stranger entrusted two $97,500 checks, endorsed in blank, to Street

without Street raising any ae pe the circuitous routing of the checks

and of their proceeds; and Street’s own apparently unhampered spending

of the proceeds for his own personal needs. Furthermore, Street seems to

have given a markedly poor poeaae on the witness stand, being in-

consistent and contradicting himself on various material points.

Aprenpix 15

duct had been satisfactorily explained by him upon the

theory of his innocence, but also to regard false statements

in explanation or defence made or procured to be made as

in themselves tending to show guilt. The destruction, sup-

pression or fabrication of evidence undoubtedly gives rise

to a presumption of guilt to be dealt with by the jury.”

Wilson v. United States, 162 U.S. 613, 620-21 (1896).

Accord, Andrews v. United States, 157 F.2d 723 (5th Cir.

1946) (per curiam) cert. denied 330 U.S. 821 (1947) ; Seeman

v. United States, 96 F.2d 732 (5th Cir.) cert. dented, 305 U.S.

620 (1938).

We conclude, therefore, that there was ample evidence

from which to conclude that Kilenllen’s involvement was not

innocent, that like Street he was aware that he was dealing

with bogus checks, and that this awareness went back to the

beginning of December.

Kilcullen also argues that the court erred in instructing the

jury that they could find the checks were forged under 18

U.S.C. § 2314 if they found that Brennick did not know a

Jacob Weiner and that the Weiner endorsement was written

by an unknown person. Kilcullen contends (1) that a forged

endorsement is not a forgery under § 2314, citing primarily

Streett v. United States, 331 F.2d 151 (8th Cir. 1964), and

(2) that under the fictitious payee rule of commercial law,

the endorsement described in the court’s charge could have

been properly valid. We do not reach either contention, how-

ever, because Kilcullen neither objected to the challenged in-

struction nor requested his own instructions, Fed. R. Crim.

P.30, and we do not find plain error. Fed. R. Crim. P.52(b).

Whatever could be said for these contentions, it is hard to

believe that a jury would have found the distinctions of sig-

nificance even had they understood them. Furthermore, the

court, in addition to the instruction in question, charged

alternatively that the jury could find that the checks were

fraudulent if it found (1) that the Brennick signatures were

Aprenoix 16

not made by Brennick or someone acting under his authority,

or (2) that the cheeks blanks were counterfeit, i.e., imitations

of genuine Brennick checks. There was more than ample evi-

dence on both these theories.

lil

We turn now to codefendant Reddall’s appeal, beginning

with an account of the evidence as it bears upon his involve-

ment. Much of the evidence against Reddall, who did not

testify, came from Charles Brennick, the purported maker of

the two checks. Brennick was the well-to-do developer and

operator of a number of nursing homes. Reddall was his

bookkeeper, responsible for managing Brennick’s complex

and detailed financial reeords. The Brennick enterprises had

between thirty-five and fifty accounts at the Coolidge Bank

and ‘Trust in Watertown, Massachusetts, of which one was

Brennick’s personal or ‘‘master” account. The two bogus

Weiner checks were drawn on this latter account, which was

used as a clearinghouse for all the accounts, among which

funds were continually being transferred because of the un-

even cash flow in the nursing home business. Reddall had

considerable responsibility for this interchange of funds: he

contacted each home daily to ascertain its cash needs. He

also kept in his desk a supply of blank checks from each

home’s account which were made payable to and pre-signed

by Brennick. Reddall could thus transfer funds from a home’s

account to the master account without having to consult

Brennick. 14

Brennick testified, and other evidence confirmed, that Red-

dall was an intimate friend and associate of Jerome Cowden,

the attorney who first is alleged to have surfaced with the

Weiner checks, claiming the apparently fictitious Weiner as

14 These pre-signed checks were not used in the fraud. The Weiner

checks were photocopied from a used Brennick check and were not traced

to checks regularly under Reddall’s supervision.

APPENDIX 17

a client. Reddall had lived with Cowden for several years,

and on three occasions had arranged for Cowden to meet with

Brennick to discuss various business proposals, none of

which materialized. And in early December, Brennick testi-

fied, the two, who ordinarily were in close touch, seemed to

be together even more.

Brennick also described his financial condition in early

December. His cash position was then rather tight; his per-

sonal account was $237,000 overdrawn. He had negotiated a

$1,400,000 loan back in September and expected it to come

through on December 3. The loan would be more than ade-

quate to enable Brennick to cover the overdraft and to repay

a sizeable short term loan from Coolidge Bank. Only a hand-

ful of employees knew that this large sum was due. Reddall

was one of them. The loan closing was, however, delayed and

the money did not in fact arrive until December 10. It was

deposited immediately in the accounts of two nursing homes

and transferred into Brennick’s personal account, in accord-

ance with instructions contained in a memorandum from

Reddall dated December 5. The Weiner checks, dated Decem-

ber 10, were debited against that account two days later, hav-

ing been deposited by Street in New York on December 10.

Had they been negotiated much earlier, there would not have

been sufficient funds to cover them.

There was evidence of Coolidge’s procedure for handling

overdrafts in Brennick’s accounts and of specific overdrafts

in the few weeks after the Weiner checks cleared. Since Bren-

nick was a valuable customer, Coolidge would as a rule con-

tact Brennick’s office by phone, followed by a written notice,

whenever an account was overdrawn. Brennick would then

have until the following day to cover the deficit before a

check would be returned unpaid. Reddall was the person who

received the phone calls and written notices and who made

the appropriate arrangements to cover the overdrafts. Bren-

nick testified that + himself was not necessarily consulted

by Reddall in handling such matters. Following the debiting

Aprenpix 18

of the Weiner checks, the following overdrafts were re-

corded: $24,000 on December 13; $91,838 on December 17,

$54,000 on December 20; and $172,000 on December 21. These

overdrafts would not have occurred if the two bogus checks

had not been paid; and Reddall were he honest and diligent,

should preswnably have realized from the amounts involved

that something was amiss in Brennick’s acount. Yet the fraud

was uncovered only in January when the statement and can-

celled checks were received.

Finally, there was evidence that Reddall shortly after

Christmas received $1700 from Cowden. By then, Street had

paid Cowden large amounts from the proceeds of the Weiner

checks. There was additional evidence that Reddall was in

need of money, and that, after loaning Reddall funds, Bren-

nick had declined to make further advances to him.

IV

Reddall asserts that the evidence was insuflicient for a

jury to have found him guilty either as an aider and abettor

to the interstate transportation of the checks or as a cocon-

spirator. We disagree. To find him guilty as an aider and

abettor, see 18 U.S.C. § 2(a), the jury would have to find that

he “‘associate[d] himself with the venture, that he partici-

pate[d] in it as in something that he wishe[d] to bring about,

that he [sought] by his action to make it succeed.’ ” United

States v. Hathaway, Nos, 75-1352, -53, slip op. at 22 (1st Cir.,

March 24, 1976) quoting United States v. Peoni, 100 F.2d 401,

402 (2d Cir. 1938) (1. Hand, J.). “Participation in every

stage of an illegal venture is not required, only participation

at some stage accompanied by knowledge of the result and

intent to bring about that result.” 7d.

There was ample evidence that Reddall associated with,

participated in, and sought to make succeed the fraudulent

Appennix 19

check scheme.!5 He had an intimate working knowledge of

Brennick’s financial affairs and of the arrival of this partic-

ular loan, of which only a few other employees were aware.

Brennick’s tight cash position at the beginning of December

indicated that it was important that the debiting of the

Weiner checks be precisely coordinated with the arrival of

the $1,400,000, thus requiring someone with inside know!l-

edge. And Reddall was not merely an acquaintance but an

intimate of Cowden, the person who handed the checks to

Strect and received the jion’s share of the proceeds. Perhaps

most significantly, Reddall, the employee whom the evidence

showed would be notified of the overdrafts, apparently cov-

ered in December four sizeable overdrafts in Brennick’s per-

sonal account subsequent to the debiting of the Weiner checks

which either would not have occurred or would have been in

much different sums had the Weiner checks not come

through. The jury could have believed because of the contin-

ual flow of money among the various Brennick accounts, that

Reddall, the bookkeeper charged with overseeing and coordi-

nating those transfers, would have to know the balances in

all the accounts, and must have realized when the bank ad-

vised of these deficits that large sums were unaccounted for.

There was no evidence, however, that he brought these over-

15 Reddall suggests that the relevant venture with which he must be

proven to have associated is the interstate transportation of the Weiner

checks, not the forgery scheme, and as he himself was not shown to have

transported the checks, he must be acquitted. But he mischaracterizes the

relevant venture. The gist of the federal crime is the fraudulent check

scheme. United States v. White, 451 F.2d 559, 560 (6th Cir. 1971) cert.

—-s U.S. 1071 (1972) quoting Kasle v. United States, 233 F. 878,

882 ( Cir. 1916). (‘The status of the articles, in the sense of being

interstate or intrastate in character, cannot in the nature of things affect

the fact either of the stealing or ge | alleged; and the statute,

whether federal or state, is at bottom aimed against stealing or receiv-

ing.’ ”). A substantive violation of 18 U.S.C. § 2314 does not require proof

of knowledge of the interstate character of the transportation. All that

need be shown is knowledge that the checks were forged, falsely made, or

counterfeit, together with the actual fact that they were transported inter-

state. United States v. Strauss, 443 F.2d 986 (ist Cir.) cert. denied, 404

U.S. 851 (1971); United States v. Tannuzzo, 174 F.2d 177 (2d Cir.) (A.

Hand, J.) cert. denied, 338 U.S. 815 (1949). Section 2314 itself speaks of

knowledge only in reference to the fraudulent nature of the checks, not in

reference to the element of interstate transportation. The same applies, at

least in this circuit, to one charged with aiding and abetting under § 2(a).

United States v. Strauss, supra, at 988.

Aprenpix 20

drafts to anyone’s attention or took any steps to investigate.

The jury could have inferred that he was attempting to cover

up the deficits, at least for a time, beeause as a participant in

the fraudulent check scheme he was aware of why the account

was so low. True, it was Reddall who first brought the Weiner

checks to Brennick’s attention when the monthly statement

arrived on January 7; but to attempt to hide the forgery at

that. point would have seemed a senseless act that would only

add to the appearance of guilt.

Turning to the sufliciency of the evidence on the conspiracy

eount, Reddall argues that the evidence was insufficient to

show that he knew of the existence of any conspiracy.16 He

contends that the evidence at most sustains an inference that

he supplied Cowden with used check forms from which to pre-

pare the counterfeit forms and with the information that a

large sum of money was soon to be deposited in Brennick’s ac-

count. This, he contends, was insufficient to sustain a convie-

tion under the conspiracy count, citing United States v. Fal-

cone, 311 U.S. 203 (1940). However, the evidence described

above from which the jury could infer that Reddall aided and

abetted in the forgery and subsequent interstate transporta-

tion would also give rise to an inference that he entered into

an agreement for that purpose. Evidence that he covered up

the forgery for several weeks in December at which time

other defendants were busily engaged in cashing the checks

'6 In contrast to the decisions relating to the substantive federal of-

fense, see note 15 supra, there is some conflict as to whether an anti-federal

element, here the knowledge of the interstate transportation, must be

shown to hold a codefendant guilty on the conspiracy count. See United

States v. Greer, 467 F.2d 1064 (7th Cir. 1972), cert. denied, 410 U.S. 929

(1973) (holding that knowledge of interstate transportation is not required

for conspiracy charge); [/nited States v. Crimmins, 123 F.2d 271 (2d Cir.

1941) (L. Hand, J.) (holding that such knowledge is required); Linde v.

United States, 13 F.2d 59 (8th Cir. 1926) (knowledge is necessary); W.

LaFave & A. Scott, Criminal Law § 61, at 468(1972) ; Model Penal Code,

§$ 5.03, Comment (Tent. Draft No. 10, 1960) (arguing knowledge not

necessary) ; Developments in the Law — Criminal Conspiracy, 72 Harv. L.

Rev. 920, 937-39 (1959) (criticizing rule requiring knowledge) ; cf. McGun-

nigal v. United States, 151 F.2d 162, 166 (1st Cir.), cert. dented, 326 U.S.

776 (1945) (problem mentioned but not confronted). See also Screws v.

United States, 325 U.S. 91, 106 (1945); In re Coy, 127 U.S. 731, 762-63

( — a J. dissenting). The issue is not raised and we need not rule

definitively.

Aprennix @1

clearly supports a conclusion that he was a party to the over-

all scheme, particularly since no other reasonable explana-

tion appears for his failure to disclose the diserepaney in

Brennick’s account. Compare Ingram vy. United States, 360

U.S. 672, 678-79 (1959). And while the evidence connected

him only with Cowden alone, an agreement with only one

member of a larger conspiracy would be sufficient.

Reddall also argues that the district court erred in deny-

ing a motion he made with respect to the order of proof.17

Citing Lutwak v. United States, 344 U.S. 604 (1953), and

United States v. Honneus, 508 F.2d 566 (1st Cir. 1974), cert.

denied, 421 U.S. 948 (1975), he asserts that the cireumstances

of this case were such that the //onneus instructions alone

were inadequate to ensure that the jury would not rely on

hearsay statements by coconspirators in assessing whether

Reddall had entered into the conspiracy. The order of proof

which he requested, he claims, would have been an effective

safeguard against the premature consideration of such hear-

say by marshalling it all at the end of the Government’s case.

It may be that even proper limiting instructions cannot

entirely prevent a jury from considering evidence, either

consciously or unconsciously, for a purpose other than the

limited purpose for which it may have been introdueed. Cf.

Woodcock v. Amaral, 511 F.2d 985, 994 (1st Cir. 1974), cert.

denied, 423 U.S. 841 (1975). But there is a strong presump-

tion that proper limiting instructions will reduce the possi-

bility of prejudice to an acceptable level. Cf. id.; Fed. R. Evid.

105. Honneus instructions were given here on five separate

occasions. We find no abuse of discretion in allowing the

Government to introduce evidence in the order it chose. Cf.

United States v. Hathaway, supra, slip op. at 26; 6 Wigmore

on Evidence § 1867 (3d ed. 1940). Virtually none of the hear-

17 Reddall requested the following order of proof:

(1) independent, non-hearsay evidence of substantive offenses ;

(2) independent, non-hearsay evidence of conspiracy; and

(3) hearsay evidence.

Aprenpix 22

say declarations of coconspirators which were admitted im-

plicated Reddall as a participant in the alleged conspiracy,

and three of Reddall’s alleged eoconspirators took the stand

and were subject to cross-examination, thus serving to offset

the inherent danger, if any. Sec United States v. Rivera Diaz,

Nos. 75-1316, -17, -18, slip op. at 4. (Ist Cir., June 28, 1976).

Reddall also argues that the district court erred in failing

to grant his request for an instruction at the close of the

Government’s case, that the evidence was then closed as to

him. Reddall did not offer any evidence in his defense and

rested at that point; his two codefendants each put on a de-

fense. He cites no authority, however, and we know of none,

for the proposition that, when codefendants are tried jointly,

an individual codefendant is entitled to such an instruction

at the close of his own case. Moreover, we find no evidence of

prejudice in the proceedings that,thereafter oecurred. As he

was involved at a different stage of the events deseribed at

trial than were his codefendants, the jury could have had

little diflieulty in separating out the evidence bearing on his

guilt from that bearing on his codefendants’. Cf. United

States v. Martinez, 479 F.2d 824 (1st Cir. 1973). There was

little mention of him at all in the course of the defense evi-

denee. See Woodcock v. Amaral, supra, The court properly

instructed the jury at the close of all the evidence that it was

to consider the guilt or innocence of each defendant individ-

ually without regard to the guilt or innocence of any code-

fendant. See Blumenthal v. United States, 332 U.S. 539, 560

(1947).

Reddall’s final argument is that the distriet court pre)-

udiced him and thereby committed reversible error by deny-

ing his motion, made at the commencement of trial, to remove

red-lettered FBI labels from four or five exhibits introduced

at trial. C/. Fed. R. Evid. 403. This argument is without merit.

FBI involvement in the case was well known through the pres-

ence and testimony of agents. Such matters relating to the

introduction.of real evidence are peculiarly within the dis-

Pm te ee

Appenpix 23

cretion of the trial judge, see 4 Wigmore on Evidence § 1157,

at 340 (Chadbourn rev. 1972) ; McCormick on Evidence § 212,

at 525 (2d ed. 1972).

Affirmed.

Thayer-Dearing Company Legal Printers Boston

Aprenpix 24

United States Court of Appeals

For the First Circuit

No. 76-1022.

UNITED STATES OF AMERICA,

APPELLEE.

v.

RICHARD KILCULLEN,

DEFENDANT, APPELLANT.

JUDGMENT

Entered August 31, 1976

This cause came on to be heard on appeal from the United

States District Court for the District of Massachusetts, and

was argued by counsel.

Upon consideration whereof, It is now here ordered, ad-

judged and decreed as follows: The judginent of the District

Court is affirmed.

By the Court:

/s/ DANA H. GALLUP

Clerk.