# Petition — Kilcullen v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 430 U.S. 906

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0641%3A1. Public record. Not legal advice.