Bradley v. United States

• Decision Date: 10 September 1969
• Docket Number: No. 22070.,22070.
• Citation: 420 F.2d 181,136 US App. DC 339
• Parties: Ennis W. BRADLEY, Appellant v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

136 US App. DC 339, 420 F.2d 181 (1969)

Ennis W. BRADLEY, Appellant v. UNITED STATES of America, Appellee.

No. 22070.

United States Court of Appeals District of Columbia Circuit.

Argued March 27, 1969.

Decided September 10, 1969.

Mr. Milton S. Gwirtzman, Washington, D. C. (appointed by this court), for appellant.

Mr. Clarence A. Jacobson, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., at the time the brief was filed, Frank Q. Nebeker, Asst. U. S. Atty., at the time the brief was filed, and William H. Collins, Jr., Asst. U. S. Atty., were on the brief, for appellee.

Before BAZELON, Chief Judge, and TAMM and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge.

Appellant Bradley was convicted on two counts of passing forged checks and two counts of causing them to be transported in interstate commerce. He was given four concurrent two-to-six year sentences. For the reasons stated, we reverse and remand for a new trial.

1. The Evidence

The prosecution established that Bradley cashed checks bearing the forged signature of "David Scott," payable to Bradley and endorsed by Bradley. The checks, drawn on the Wilmington Trust Co., were prepared on a check writer machine which had been stolen on December 20, 1966, along with 604 checks, from Scott Motors Company in Wilmington.

Two checks for $52.40 each were cashed on December 27, 1966, one at a Safeway's and the other at Hayden's liquor store. The two other checks, for $145.80 each, were cashed on December 29, again at the Safeway's and Hayden's.

Because we think it useful for an understanding of the issues, we shall depart from the usual order and shall begin with a rather full statement of defendant's testimony, and shall then take up the testimony of the prosecution's witnesses.

Defendant's Testimony

Defendant's account reveals that he was a 48-year-old housepainter who had been out of work since Thanksgiving. On December 26, 1966, he had returned to Washington from a visit to his daughter and grandchildren in Fredericksburg. He was drinking a beer in Carry's Restaurant when he was approached by a former acquaintance he had known two years previous, but only as "Jimmy." Jimmy said he was now in business with Scott Motor Company in Delaware, with some relatives. Jimmy asked Bradley to join him on a date he had arranged with two girls. Bradley regretted he was "too darn broke to go any place." Jimmy said he had no desire going out with two women by himself, so Bradley did not need any money. They drank some whiskey from paper cups in the auto en route, and more whiskey at a grill where they met the girls. They took one of the girls home, and Jimmy's car got stuck in the snow at her trailer camp. So they spent the night in the trailer, where more liquor was consumed.

Next day, after another "drinking party," they dug the car out and returned to Washington about 3:30 p. m. On the way Jimmy asked Bradley if he had made another date with his girl, but again Bradley said he was too "broke." Jimmy then asked if he knew anybody in Washington who could cash a check for him. Bradley replied he could cash a check either at his Safeway or at Hayden's liquor store. Jimmy removed from his trunk and brought into Bradley's basement apartment a check-writing machine and brief case containing checks and made out a check to Bradley for $52.40, telling him to get some eggs, coffee, and cigarettes. Bradley asked why he signed the check "David Scott." Jimmy said that was his right name, David Scott, that "Jimmy" was only a nickname since childhood. He also explained, when asked, that he took the machine with him since he did not want to leave the machine and checks in Delaware while he was on vacation. Bradley got Gilbert Perkey, Safeway's manager, to okay the check, and he returned the change to Jimmy. Bradley had been cashing checks about every other week with Safeway for about four or five years, and was known by Perkey.

After a couple more drinks of whiskey, Jimmy wrote another $52.40 check and asked Bradley to cash it at the liquor store, and buy some whiskey and beer. Jimmy said they were going out together and he wanted Bradley to have as much money as he had to spend. After Bradley got this check cashed at Hayden's liquor store, where he was a regular customer, he returned the change to Jimmy who told him to keep $10.00 for the night's expenses.

The night of the 27th was spent in more drinking, in the car, at the grill until it closed, and then back at the house of one of the girls.

After more drinking on the 28th, Jimmy and Bradley returned alone to the latter's apartment to get some sleep. On the morning of the 29th, after more drinking, Jimmy said he would have to get some more money in order to go on a trip to Reno, Nevada, planned for his vacation, as well as for their joint need of more whiskey. Bradley agreed to get a $145.80 check cashed at the Safeway and he returned to the apartment with Jimmy's money. Then Jimmy talked Bradley into cashing one final check for the same amount at Hayden's liquor store. Jimmy explained to Bradley he used two checks because he did not want to make a check so big the store might not have enough money to cash it.

They spent the rest of the 29th drinking and looking for the girls. The 30th they got Jimmy's car washed, oiled and greased for his Reno trip. On the 31st Bradley awoke to find Jimmy gone. Bradley went to a bar to spend New Year's Eve. On the way home he slipped on the ice and broke his left leg. He spent the next 18 days in Casualty Hospital.

On January 9 or 10, Bradley learned from his daughter that Mr. Perkey had told her a check had been returned for improper signature. On January 18, Bradley returned from the hospital to his apartment, and Perkey visited him to tell him the $52.40 check had been returned. Appellant asked about the other check. Perkey did not recall having cashed another check, and had received no notice of dishonor.

The next morning Bradley called David Scott at Scott Motors in Wilmington and asked him why he had given him a bad check. The real David Scott explained that several hundred company checks and the check writer machine had been stolen and said he was the third person from Washington who had called. Bradley then called the FBI in Washington and told Agent MacCabe what had happened. He had found the check-writing machine in his apartment pantry on return from the hospital and told MacCabe where it could be found. He readily allowed his photo, fingerprints, and handwriting sample to be taken by the FBI. He phoned Hayden's liquor store to say the checks were no good and he would be in touch with them. He then left for Fredericksburg, Virginia, to stay with his daughter until he was off crutches and could work. When he returned to Washington in April he was contacted by MacCabe. They arranged a meeting, at which MacCabe showed him pictures of Jimmy, whom he identified. Appellant was arrested at that time.

On cross-examination appellant reiterated that he did not know the checks were forged, and said that if he had known this he would never have taken them for cashing at the two stores where he dealt regularly and was personally known. He conceded that he might have been more suspicious if he had not been drinking so much, but as it was he did not distrust the explanation given by Jimmy, whom he had known as a businessman who owned two ice cream trucks in Washington, and who was now on a vacation in which he wanted company. Even after Perkey's visit about the first check he does not really seem to have appreciated the situation. He took the initiative of phoning Scott, the FBI, and Hayden's. He told Agent MacCabe about the location of the check-writing machine he had found in his apartment on returning from the hospital.

Testimony of Prosecution Witnesses

As to the prosecution witnesses, FBI Agent MacCabe testified primarily only as to his interview with Bradley, Perkey, and Gregory, the manager of Hayden's. Gregory confirmed that Bradley was a regular customer there, but had no recollection of the cashing of the checks. Perkey confirmed that every other week over a period of four years he had cashed checks for Bradley written by various employers, in the District, Maryland, and Virginia. He was "kind of friendly" to Bradley, and continued this service even though he did not have a file on Bradley when Safeway instituted its registration policy.

Perkey also testified that he questioned the first Scott check, asking Bradley what he was doing with a check on an out-of-town bank, and that Bradley said the Scott people were establishing a place in Washington and he was doing some work for them. Defendant denied that any question had been asked by Perkey, or that he had said this.

A. Issue of Defense Access to Grand Jury Minutes Prior to Cross-Examination.

After Perkey testified, defense trial counsel asked for the grand jury minutes of his testimony. The trial judge ruled that the request should have been made months before (at which time appointed counsel did not represent appellant). Since the request would require transcription and interruption of the trial, the judge ruled that the minutes would be denied unless "some peculiar reason shows up why you need it after he testified."

The Government argues that Perkey was not a truly "key" witness, and "only one bit" of Perkey's testimony went to the issue of defendant's knowledge of the forgery. But Perkey was the only Government witness giving personal recollection as to any of the check-cashing incidents. He did not recall various aspects of the first cashing incident, and admittedly had had no personal recollection at all of cashing the second (and much bigger) check. What he did purport to remember was that defendant said he was doing work for Scott, and his supporting testimony of why he happened to remember this and little else undoubtedly related to a highly material aspect of the case. Its full impact,...