U.S. v. Kohan
| Decision Date | 17 November 1986 |
| Docket Number | No. 1518,D,1518 |
| Citation | 806 F.2d 18 |
| Parties | 22 Fed. R. Evid. Serv. 77 UNITED STATES of America, Appellee, v. Jonathan B. KOHAN and Daniel Lowery, Defendants-Appellants. ockets 86-1169, 86-1192. |
| Court | U.S. Court of Appeals — Second Circuit |
Joseph J. Marcheso, New York City, for defendant-appellant Kohan.
Howard T. Diller, New York City, for defendant-appellant Lowery.
Linda Imes, New York City, Asst. U.S. Atty. for S.D. of N.Y. (Rudolph Giuliani, U.S. Atty. for S.D.N.Y., of counsel), for appellee.
Before PRATT and MINER, Circuit Judges, and RE, Chief Judge of the United States Court of International Trade, sitting by designation.
Jonathan B. Kohan and Daniel Lowery appeal from judgments of conviction entered in the United States District Court for the Southern District of New York, following a joint five-day jury trial before Chief Judge Constance Baker Motley, of conspiracy to commit bank fraud, 18 U.S.C. Sec. 371, and of the underlying substantive offense of making false and fraudulent representations in defrauding a bank, id. Secs. 2, 1344. The evidence tended to show that Steven Fellouris, a co-defendant who was a fugitive at time of trial, solicited and received defendants' assistance in inducing Chemical Bank in New York to cash two corporate checks he had stolen from his employer and forged.
On appeal defendants urge several grounds for reversal, two of which center on evidentiary rulings by the trial judge and have substantial merit. As discussed below, the trial judge erred both in excluding the testimony of Lowery's sole witness on hearsay grounds and in precluding Kohan from cross-examining government witnesses regarding a possible scheme by Fellouris and his employer to defraud Chemical Bank. Because we believe these rulings served to prejudice substantial rights of Kohan and Lowery, we reverse and remand for a new trial.
In February 1985 Fellouris, an employee of Brook Fuel Oil Corporation ("Brook Fuel"), devised a scheme to bilk Brook Fuel of $143,500. On February 26, 1985, Fellouris stole three checks payable to Brook Fuel in the aggregate amount of approximately $127,000, and deposited them into In seeking to cash the checks, Fellouris turned to Lowery, an old friend who worked as a financial advisor. In an interview with New York City Detective Manzello during the investigation, Lowery stated that during a dinner at Lowery's apartment, Fellouris had told him that he had loaned Brook Fuel approximately $127,000, which loan was still outstanding. Sometime after that dinner, Fellouris told Lowery that he would have two checks issued by Brook Fuel in the amounts of $71,500 and $72,000 in repayment of the loan plus interest, and that he intended to use the proceeds of these checks to open a restaurant with Lowery as his partner.
the company's account with Chemical Bank without recording them on the company's books. Fellouris then stole a sheet of blank checks from Brook Fuel's checkbook, filled in two of them in the amounts of $71,500 and $72,000, traced on both checks the signature of Robert Ragno--who, along with Fellouris's nephew John Colombos, owned Brook Fuel--and noted on each check that it was for "return of loan and interest".
Defendant Kohan testified at trial that he was an attorney licensed to practice in Pennsylvania, was not yet admitted to practice in New York, but had been associated with a New York law firm where he worked on real estate and entertainment law matters. Kohan stated further that since 1978 he had promoted entertainment, theatrical, and sporting events as well.
Kohan had worked on numerous mortgage brokerage projects with Diane Acker, a "venture capitalist". Acker had introduced Kohan to Lowery approximately two years before trial in connection with a mortgage financing project. On February 25, Acker contacted Kohan to relate that a client of Lowery sought to cash two checks he was receiving in repayment of a loan for the purpose of acquiring a restaurant. Acker asked Kohan to serve as escrow agent, explaining that she and Lowery had been working on the transaction and were to receive a fee of 10%. Kohan responded that he would require written instructions in order to do the transaction.
Kohan further testified that Acker telephoned the next day to explain that an escrow agreement had been prepared and that the checks were ready to be cashed. In addition, Kohan stated that Lowery called as well to confirm the transaction and put Fellouris on the line to explain about the restaurant deal and to state that he had signed an escrow agreement.
Kohan arranged to clear the two checks through his special attorney escrow account at the Grand Central Station branch of Chemical Bank. On February 25, he met with the manager of that branch, Pat Gonsalves, and told her that "he was doing the Prince concert" and that he would be getting a large check drawn on another Chemical branch. Trial testimony indicates that Gonsalves understood Kohan to mean that he would be promoting the upcoming Prince concert.
When Kohan met with Acker the next day, she gave him the escrow agreement, executed by Fellouris, as well as the two checks. The name of the payee on each check had been left blank; Kohan filled in the payee sections to read "Jonathan Kohan, as escrow agent".
On February 27, Kohan called branch manager Gonsalves and told her he was bringing the two checks to the bank for deposit. Kohan made the deposit that afternoon, after which he called Gonsalves and asked when was the earliest time he could withdraw the proceeds in large bills. Gonsalves explained that the earliest she could provide the cash would be Friday, March 1. However, on the following day Kohan called again and said that he had to have the money that day.
After contacting David Newby, the manager of the branch at which Kohan had previously banked, to confirm that Kohan was involved in the entertainment promotions business and had conducted several large cash transactions with him, and with the Bronx branch to verify that the checks' maker had not reported any lost or stolen checks and that the central check Lowery and Acker arrived at the bank before Kohan. During a conversation with Gonsalves, Lowery told her that he had given up an official position at a financial institution to become an agent, and that he had connections in the entertainment world.
file department had no problem with the signatures on the checks, Gonsalves decided to give Kohan the cash earlier. Gonsalves telephoned Kohan to tell him he could pick up the cash at about 3 o'clock in the afternoon of February 28. Kohan asked Acker and Lowery to meet him at the bank at that time.
When Kohan arrived, he filled out a counter check to himself in the amount of $143,500, writing in the memorandum portion "Prince concert". Upon receipt of the cash, Kohan, Lowery, and Acker left to meet with Fellouris in a nearby restaurant. There, they delivered the cash to Fellouris, and in exchange each received a payment of approximately $4,400 for helping Fellouris cash the checks.
Later that evening, Fellouris and Acker met with Thomas Moringiello, a friend Fellouris had met in prison. After Acker left, Fellouris explained that he had obtained some money from Colombos and Ragno, saying variously that he had loaned them some money and they had repaid him, and that "he finally got his revenge and ripped them off." On the morning of March 1, Moringiello called Ragno to report the conversation he had had with Fellouris the previous evening.
On March 5, Gonsalves and Newby learned that Brook Fuel was claiming that the signatures on the two Brook Fuel checks that Kohan had deposited were forged. Gonsalves immediately called Kohan and demanded that the cash be returned. Kohan said that he could not get it back, that the transaction was more complicated than he could explain, but that "whatever happens, I don't want the Prince concert mentioned". The next day Kohan met with several bank officials and explained that he got the two checks from Lowery. Kohan admitted he had misrepresented the use to which the money would be put in an attempt to exaggerate his importance to bank officials.
At the outset it is important to note that Lowery and Kohan did not contest their involvement in assisting Fellouris to cash the two Brook Fuel checks. They argued in defense, however, that they lacked the specific intent necessary to convict them of defrauding Chemical Bank. Thus, defendants' state of mind at the time the checks were cashed was the determinative factual issue at trial.
It is precisely for this reason that Lowery sought to introduce his roommate Thomas Butler's testimony at trial. Butler testified that he saw Fellouris at the apartment Butler shared with Lowery four to five times between December 1984 and February 1985. In response to the government's request for a proffer of the testimony to be elicited from Butler, Lowery's counsel explained at side bar that Butler would relate the substance of two conversations between Fellouris and Lowery in which Fellouris stated he had sold a theatrical property, had loaned the proceeds therefrom to Colombos, and that he was having difficulty getting repaid.
Furthermore, Butler would testify that when Fellouris delivered the checks to Lowery, he and Lowery discussed their nature, what they were for, and what they intended to do with the proceeds. Counsel added, "This all goes to the state of mind of Mr. Lowery that he had no knowledge that the checks were stolen." The government objected to this proffer on hearsay grounds, arguing that the testimony neither goes "to [Lowery's] state of mind" nor fits within any other exception to the hearsay rule. To this Lowery's counsel responded, ...
To continue reading
Request your trial
-
U.S. v. Biaggi
...is excluded, we have not hesitated to order a new trial. See United States v. Detrich, 865 F.2d 17 (2d Cir.1988); United States v. Kohan, 806 F.2d 18 (2d Cir.1986); United States v. Harris, 733 F.2d 994 (2d Cir.1984); United States v. DiMaria, supra. Whether the error in excluding evidence ......
-
United States v. Certified Envtl. Servs., Inc.
...801(c). An out-of-court statement offered for some other purpose, such as to show that a statement was made, United States v. Kohan, 806 F.2d 18, 22 (2d Cir.1986), to demonstrate the statement's effect on the listener, United States v. Puzzo, 928 F.2d 1356, 1365 (2d Cir.1991), or to show th......
-
Air Disaster at Lockerbie Scotland on Dec. 21, 1988, In re
...which is an element of the offense." Id.; see also United States v. Detrich, 865 F.2d 17, 21 (2d Cir.1988); United States v. Kohan, 806 F.2d 18, 21-22 (2d Cir.1986); United States v. Kyle, 257 F.2d 559, 563 (2d Cir.1958), cert. denied, 358 U.S. 927, 79 S.Ct. 312, 3 L.Ed.2d 301 (1959); Fed.R......
-
United States v. Certified Envtl. Servs., Inc.
...R. Evid. 801(c). An out-of-court statement offered for some other purpose, such as to show that a statement was made, United States v. Kohan, 806 F.2d 18, 22 (2d Cir. 1986), to demonstrate the statement's effect on the listener, United States v. Puzzo, 928 F.2d 1356, 1365 (2d Cir. 1991), or......
-
Hearsay
...was intended by the act of putting the word on the glass ; and, therefore, the glass was properly admitted. United States v. Kohan , 806 F.2d 18 (2d Cir. 1986). Statements which the defense relied on, not for their truth but for the fact that they were made to the defendant, who believed th......
-
Hearsay
...was intended by the act of putting the word on the glass ; and, therefore, the glass was properly admitted. United States v. Kohan , 806 F.2d 18 (2d Cir. 1986). Statements which the defense relied on, not for their truth but for the fact that they were made to the defendant, who believed th......
-
Hearsay
...was intended by the act of putting the word on the glass ; and, therefore, the glass was properly admitted. United States v. Kohan , 806 F.2d 18 (2d Cir. 1986). Statements which the defense relied on, not for their truth but for the fact that they were made to the defendant, who believed th......
-
Hearsay
...was intended by the act of putting the word on the glass ; and, therefore, the glass was properly admitted. United States v. Kohan , 806 F.2d 18 (2d Cir. 1986). Statements which the defense relied on, not for their truth but for the fact that they were made to the defendant, who believed th......