U.S. v. Kilcullen

• Decision Date: 31 August 1976
• Docket Number: Nos. 76-1022,76-1023,s. 76-1022
• Citation: 546 F.2d 435
• Parties: UNITED STATES of America, Appellee, v. Richard KILCULLEN, Defendant, Appellant. UNITED STATES of America, Appellee, v. Francis Ashby REDDALL, Jr., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 435

546 F.2d 435

UNITED STATES of America, Appellee, v. Richard KILCULLEN, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Francis Ashby REDDALL, Jr., Defendant, Appellant.

Nos. 76-1022, 76-1023.

United States Court of Appeals, First Circuit.

Argued June 4, 1976.

Decided Aug. 31, 1976.

John Silas Hopkins, III, Boston, Mass., with whom John M. Harrington, Jr., Ropes & Gray, Boston, Mass., Robert Felleman, and Felleman & Lutch, Brookline, Mass., were on brief, for Richard Kilcullen, appellant.

David A. Mills, Danvers, Mass., by appointment of the Court, with whom Walter J. Hurley, and George V. Higgins, Inc., Boston, Mass., were on brief, for Francis Ashby Reddall, Jr., appellant.

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

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

LEVIN H. CAMPBELL, Circuit Judge.

Richard Kilcullen and Francis Ashby Reddall, Jr., were convicted by a jury of the interstate transportation of two forged, falsely made, and counterfeit 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, Edward Lloyd Street, Carl Thomas Bannon, Jr., and Jerome Fleet Cowden, but were tried only with Bannon. ¹

On appeal, Kilcullen and Reddall contend that the evidence was insufficient to support their convictions. Kilcullen also contends that the court's instructions to the jury were erroneous, 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 fraudulent, and the payee non-existent. Codefendant Reddall, Brennick's bookkeeper, 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 Kilcullen, setting forth the evidence in a light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Kilcullen, a 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 evidence is undisputed that Kilcullen knew of the checks and was privy to many of the activities of Street and others, but Kilcullen 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, Kilcullen had just become associated with a well-regarded law 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 unsuccessful 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 corporate 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 transaction 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 arrangements.

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 deposited in the new account. Kilcullen, whose law firm was located in the same building, and was a very good account of Bankers, introduced Street to Littlejohn, the branch manager, 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 Kilcullen's law firm who verified that Kilcullen 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 IOB had $1,000,000 paid-in capital. ² After opening the account, Street and Kilcullen continued to meet on other matters, and Street then returned to Boston.

On December 6, a few days after the IOB account had been opened, Street testified to being asked by codefendant Bannon 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 following day, a Friday, at Bannon's office in Boston. Later that afternoon or evening Street called Kilcullen in New York to sketch out this proposal and get Kilcullen's advice. Kilcullen advised that he saw no problems, cautioning Street only to be sure to have the attorney identify himself and vouch for his client. ⁴

The meeting on the following day, December 7, was, according 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 adequately 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. (Kilcullen conceded in other testimony that this seemed to be an unusually large fee.) They did not discuss any fee for Kilcullen 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 authorized anyone else to write them. He also stated that he did not 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 Kilcullen's office, Cowden phoned from Boston and spoke to both Street and Kilcullen to confirm that the checks had been deposited. Street again told Kilcullen that IOB could stand to receive $5,000 or $10,000 for the transaction.

Later that day, according to Littlejohn's testimony, he phoned Kilcullen 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 IOB. ⁷ Kilcullen was not present, and he and Street testified that these sums were not brought to Kilcullen's attention until later.

On December 17, Cowden called Kilcullen. 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 testified 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 IOB, but not, Street testified, that Bannon was to receive $25,000. The two Weiner checks had in fact cleared that very day, and so the proceeds 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 cashier's checks, payable to the Lincoln Trust Company. ⁹ Street also wrote five checks on the IOB account:...