835 F.2d 219 (9th Cir. 1987), 86-1391, United States v. Thomas

Docket Nº:86-1391.
Citation:835 F.2d 219
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Joseph Mack THOMAS, Defendant-Appellant
Case Date:December 30, 1987
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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835 F.2d 219 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,


Joseph Mack THOMAS, Defendant-Appellant

No. 86-1391.

United States Court of Appeals, Ninth Circuit

December 30, 1987

Argued and Submitted Sept. 15, 1987.

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William A. Maddox, U.S. Atty., Las Vegas, Nev., for plaintiff-appellee.

Lorraine J. Mansfield, Las Vegas, Nev., for defendant-appellant.

Appeal from the United States District Court for the District of Nevada.

Before CHAMBERS, and CANBY, Circuit Judges, and KING, [*] District Judge.

CANBY, Circuit Judge:

Joseph Thomas appeals his conviction by a jury for transportation of securities taken by fraud in violation of 18 U.S.C. Sec. 2314 and wire fraud in violation of 18 U.S.C. Sec. 1343. We affirm.

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On May 6, 1986, appellant Thomas opened a checking account at Norstar Bank, Ridgelake branch in Rochester, New York, with a $100 deposit. Later that day, Thomas deposited a check for $87,300 in the same Norstar account. This check was drawn on Thomas' account at Goldome Savings, Rochester, New York, which account had been closed in September 1985. On May 9, 1986, Thomas withdrew $86,000 from his Norstar account in the form of a cashier's check payable to his codefendant Mark Ricci.

Ricci then appeared in Las Vegas, Nevada with the cashier's check. He attempted to use the check for a gambling stake or to cash the check at the Golden Nugget Hotel and at Caesar's Palace between May 9th and 12th. On May 12th, 1986, appellant Thomas and Ricci were arrested in Ricci's room at the Golden Nugget Hotel.

At trial, Thomas' principal defense was that he had no intent to defraud. In support of this argument, Thomas' father and brother testified that the family credit line was available to cover Thomas' bad checks. Thomas' father also testified that in the past he had always covered his son's bad checks. In rebuttal, the government presented the testimony of Thomas' probation officer, who had dealt with Thomas in connection with a prior New York conviction for a similar offense. The probation officer testified that Thomas and his father had told her that Thomas' parents stopped covering his bad checks as of April 1985.

On appeal, Thomas argues that as a matter of law, he cannot be guilty of transporting a security taken by fraud. He also contends that the trial court erred in certain evidentiary and procedural rulings.


Securities taken by fraud: 18 U.S.C. Sec. 2314

Thomas first appears to argue that the cashier's check cannot be a stolen security because he owned it, having procured it from the bank in his own name. This contention misses the point, because the statute also applies to securities "taken by fraud," 1 and that is the crucial allegation in Thomas' case.

Thomas then asserts that the cashier's check cannot have been taken by fraud, because at the time he procured the check, he believed that his family's line of credit, or his family's voluntary intercession, would make good the bad check he gave the bank. Although this point is presented as a legal argument, it depends upon a view of the disputed facts that apparently was not accepted by the jury. There was evidence that Thomas himself was not a signatory to the family's line of credit at the Norstar Bank, and that the credit accordingly could not be applied as a matter of course to his bad check. There was a conflict in testimony as to whether his father stood ready to make good his bad check.

Finally, the jury was clearly entitled, if not compelled, to find fraud on the undisputed evidence that Thomas wrote a check for $86,000 on an account that had been closed for six months, and obtained the cashier's check on the strength of that fraudulent deposit. The Norstar Bank was not told the $86,000 check was not valid, nor was it asked to issue the cashier's check on the strength of Thomas' family's credit. The fraud was fully accomplished when the cashier's check was taken, and the check was then transported, with Thomas' assistance, in interstate commerce. The crime was complete. It is not a defense to fraud that a parent of means stands ready to make restitution.

Evidence of prior bad checks

Thomas next contends that the district court erred in admitting rebuttal testimony that Thomas wrote insufficient-fund checks in April and May 1985, resulting in a loss

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of $7,400 to First Federal Savings and Loan in Rochester, New York. The district court permitted the testimony as evidence of intent and opportunity, see Fed.R.Evid. 404(b), and as impeachment of Thomas' father's testimony that he had covered all of Joseph Thomas' prior bad checks.

"The determination of admissibility under Rule 404(b) rests in the discretion of the trial judge." United States v. Hooton, 662 F.2d 628, 634 (9th Cir.1981), cert. denied, 455 U.S. 1004, 102 S.Ct. 1640, 71 L.Ed.2d 873 (1982). The district court's decision on balancing probative value against prejudicial harm under Fed.R.Evid. 403 is also reviewed for an abuse of discretion. United States v. Feldman, 788 F.2d 544, 557...

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