U.S. v. Cowden

• Decision Date: 16 November 1976
• Docket Number: No. 76-1025,76-1025
• Citation: 545 F.2d 257
• Parties: UNITED STATES of America, Appellee, v. Jerome Fleet COWDEN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 257

545 F.2d 257

UNITED STATES of America, Appellee, v. Jerome Fleet COWDEN, Defendant, Appellant.

No. 76-1025.

United States Court of Appeals First Circuit.

Nov. 16, 1976.

John W. Marshall, Boston, Mass., by appointment of the Court, with whom Hamilton & Lamson, Boston, Mass., was on brief, for appellant.

Henry H. Hammond, Asst. U. S. Atty., Boston, Mass., with whom James N. Gabriel U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Indicted with four others ¹ for transporting and causing to be transported in interstate commerce falsely made, forged and counterfeit checks in violation of 18 U.S.C. §§ 2314 ² and 2, ³ and for conspiracy to commit that offense, Jerome Fleet Cowden was convicted on all counts at a jury trial conducted separately from the trials of his codefendants. On appeal he contends that the Government's evidence was insufficient to convict and that there were errors in the trial. We affirm the judgment.

The indictments of Cowden and the four others grew out of an FBI investigation of two forged checks, each in the amount of $97,500, drawn on the account of Charles R. Brennick at the Coolidge Bank and Trust Co. in Watertown, Massachusetts, and made payable to, and bearing the purported endorsement of a Jacob Weiner. Brennick testified that he had not signed the checks and that he had never heard of anyone named Jacob Weiner. The checks were taken from Boston to New York City by Edward L. Street, one of the four indicted with Cowden, where he deposited the checks in the account of the Interstate and Overseas Bank (IOB) at the Bankers Trust Company.

FBI Agent Claus, who interviewed Cowden on two occasions testified to the contents of statements then given to him by Cowden. ⁴ Cowden, an attorney, told Claus that he was contacted by telephone in late November, 1974, by an individual who identified himself as Jacob Weiner and who discussed with him "the business of cashing two checks through an overseas bank." Cowden said Weiner was unknown to him prior to that time. After this initial phone contact, Cowden said that he contacted Carl Thomas Bannon, a Boston money broker, and discussed the proposed transaction. Bannon advised that a Mr. Edward Street could be used to cash the checks. Cowden went on to tell Agent Claus that a few weeks later, on December 7, 1973, Weiner came to Cowden's office in Brookline, Massachusetts and delivered to him the two checks, each for $97,500, postdated December 10, 1973, drawn to Weiner's order on the account of Charles R. Brennick and endorsed in blank by Weiner. Cowden stated that he requested Weiner to show some identification, and in response Weiner showed what appeared to be a Massachusetts driver's license, although Cowden told the FBI agent that he saw neither the picture nor any of the writing on the license. Weiner, said Cowden, told him that he had been referred by some of Cowden's clients in the Sudbury area, but never did mention the names of the referring clients; he further told Cowden that he had heard of Cowden's reputation for handling financial and legal matters.

Upon receiving the two checks from Weiner, Cowden said that he went to Bannon's Boston office, paid Bannon a $1,000 fee for arranging a meeting with Street, and, after Street arrived, gave him the two endorsed checks, it being agreed that Street would negotiate them through "normal banking channels". Cowden stated that he had never met Street before and that they exchanged identification. The proceeds of the checks were supposedly to be dispersed according to directions Cowden would give later; and a fee totalling $35,000 was to be paid to Bannon and Street for the cashing of the checks.

There was evidence that Street took the checks to New York City on the same day, December 10, 1973, and there deposited them in the IOB account, ⁵ which he had established one week previously, on December 3, 1973, with the aid of codefendant Kilcullen. On December 19, 1973, after the checks had cleared Brennick's Coolidge Bank account Street withdrew $100,000 in ten $10,000 Banker's Trust cashier's checks and carried the checks to Hingham, Massachusetts, where on the same day he opened a savings account with the Lincoln Trust Company and deposited nine of the ten checks. Lincoln Trust would not release the funds immediately, despite requests from Street on December 19, 21, 24, and 26, 1973, to allow him to withdraw $90,000 in cash or at the very least $55,000 "to meet a payroll". Mr. McDavitt, the branch manager of Lincoln Trust at the time, testified that during his phone conversation with Street on December 24, 1973, a man who identified himself as Mr. Cowden, Street's lawyer, got on the phone and inquired, in an "abrasive" tone, what was deposited in Street's account. McDavitt refused to give out this information. The $90,000 became available to Street on December 27, 1973, after Banker's Trust had sent a telegram confirming that the cashier's checks had cleared. On that date Street withdrew $55,000, again indicating that its purpose was for a "payroll".

Cowden, who told the FBI that he could not disclose Weiner's instructions for disbursing the proceeds because it would violate the attorney-client privilege, acknowledged in his statement to the FBI agent that he received payments from Street on two separate occasions in late December 1973. These occurred, he related, after he had learned that the two Weiner checks had been negotiated through Banker's Trust in New York. The first occasion was when Street delivered two checks payable to Cowden drawn on the IOB account, one for $20,000 and one for $5,000, just prior to the time the funds at Lincoln Trust became available for withdrawal. The second occasion was on December 27, 1973, after Street withdrew the $55,000 in small bills and, following Cowden's instructions, delivered the entire sum to Cowden on the side of a road in Marshfield, Massachusetts. Cowden's statement continued that he returned with the money to his home in Brookline and there turned over the $55,000 in cash to Weiner personally. In return, Cowden said, Weiner gave him a receipt for $195,000, the total amount of the two checks.

Cowden gave the FBI a general description of Weiner, but stated that he did not know Weiner's employment or where he lived, although he speculated that Weiner lived in the Allston area of Boston, perhaps on Commonwealth Avenue. Cowden added that he had tried unsuccessfully to locate Weiner at a large apartment complex at 2001 Commonwealth Avenue. Cowden said that the only way he got in touch with Weiner was to call a specific telephone number and leave a message, and Weiner would return the call. Cowden stated that he had either lost or thrown away the piece of paper containing that telephone number and did not know otherwise how to reach Weiner.

FBI Agent Claus testified that, based on Cowden's sketchy information about Weiner, he conducted an investigation, but could find no trace of anyone by that name fitting the description Cowden had furnished. All of the FBI's "usual" methods were said to have been followed. The Massachusetts Registry of Motor Vehicles showed licenses issued to two Jacob Weiners, but one had died in 1968 and the other did not fit the physical description of Weiner given by Cowden. Focusing their investigation on the three-building apartment complex at 2001 Commonwealth Avenue, the FBI talked to the building superintendent, a person in charge of parcel deliveries, the regular mail carrier, and the rental agent without finding any trace of a Jacob Weiner.

In his statement to FBI Agent Claus, Cowden said that he was a close personal friend of Francis Ashby Reddall, one of the other men indicted, who served as the bookkeeper for Brennick. Cowden and Reddall had resided together for a period at an apartment in Boston. Cowden also told Claus that he was acquainted with Brennick himself, having been introduced to him by Reddall and having contacted him on three separate occasions in past years concerning business deals.

Mr. Brennick's testimony confirmed these prior contacts between Cowden and himself. He testified that Reddall first introduced him to Cowden in the fall of 1972 for the purpose of discussing whether Cowden might take over responsibility for some of Brennick's many business projects. After a short talk, Brennick decided against hiring him. Six months later, Brennick went on, Reddall set up a second meeting between the two men in which Cowden attempted to interest Brennick in purchasing a piece of land as a possible nursing home site. After considering the proposition for several months, Brennick decided against it. In the last telephone conversation about the matter, Brennick testified to becoming "very upset" with Cowden, telling him that there was no way he "wanted anything to do with it because he (Cowden) was bothering me altogether too much. . . ." Several months later, Reddall brought Cowden to Brennick with a third proposal: this time Cowden offered Brennick a half interest in a medical malpractice suit which Cowden wanted to litigate in Utah. Brennick turned down the offer.

Brennick also testified concerning the general nature of his business at the time of the forgery and the circumstances surrounding the forged checks. A developer and limited partner of eighteen nursing homes in several states in December, 1973, Brennick was managing an extensive business operation financed mostly by mortgage and construction loans. Each of the nursing homes had two bank accounts, one with a local bank in the area where it was located and a second with the Coolidge Bank and Trust Co. in Watertown, Massachusetts, where Brennick had his personal account. In order to make maximum use of liquid funds available to all the nursing homes, Brennick frequently transferred sums of money from a nursing home's...