U.S. v. McBride, 237

• Decision Date: 03 March 1986
• Docket Number: No. 237,D,237
• Citation: 786 F.2d 45
• Parties: 20 Fed. R. Evid. Serv. 204 UNITED STATES of America, Appellee, v. Joyce Carter McBRIDE, a/k/a "Tiffinny Harrison", Defendant-Appellant. ocket 85-1164.
• Court: U.S. Court of Appeals — Second Circuit

Page 45

786 F.2d 45

20 Fed. R. Evid. Serv. 204

UNITED STATES of America, Appellee, v. Joyce Carter McBRIDE, a/k/a "Tiffinny Harrison", Defendant-Appellant.

No. 237, Docket 85-1164.

United States Court of Appeals Second Circuit.

Argued Sept. 24, 1985.

Decided March 3, 1986.

Ceila G. Barenholz, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., for the S.D. of N.Y.), for the appellee.

Barry Bassis, New York City (Legal Aid Society, Federal Defender Services Unit, New York City, of counsel), for the defendant-appellant.

Before MANSFIELD, PIERCE and PRATT, Circuit Judges.

PIERCE, Circuit Judge:

This is an appeal from a judgment of conviction for conspiracy, criminal conversion, and bank larceny, after a jury trial in the United States District Court for the Southern District of New York, Goettel, Judge. Appellant challenges the correctness of the district court's formulation of its charge on conscious avoidance of knowledge, its use of the expression "real possibility" as part of the instruction relating to proof of guilt beyond a reasonable doubt, and the exclusion of testimony of appellant's expert psychiatric witness.

We believe the first two arguments to be without merit. However, we find that the district court erred in excluding the testimony of appellant's expert psychiatric witness; consequently, we reverse and remand for a new trial.

BACKGROUND

The jury found McBride guilty of one count of conspiracy to convert government property and to commit bank fraud in violation of 18 U.S.C. Sec. 371, two counts of conversion of government property in violation of 18 U.S.C. Secs. 641 and 642, and one count of bank larceny in violation of 18 U.S.C. Secs. 2112 and 2113(b). She was sentenced to eighteen months terms of imprisonment on the conspiracy count and on one of the conversion counts, to be served concurrently. The imposition of sentence on the second conversion and bank larceny counts was suspended, and appellant was placed on probation for four years to commence upon the expiration of the period of confinement. Appellant was also ordered to pay $25,600 restitution to Korea Commercial Bank of New York ("Bank").

The charges against appellant McBride and a co-defendant, one Errol Kevin Samuel, were based upon allegations that both had planned and participated in a conspiracy to convert government property and commit bank larceny by depositing stolen United States Treasury checks in an account at the Bank and, once the funds became available, making cash withdrawals from the Bank. Defendant Samuel has withdrawn his appeal of his conviction on all counts.

According to the government's witnesses, the defendants opened a partnership business account with the Bank for "Hit Shows Enterprise." The bank employee who handled the opening of the account identified both defendants as the individuals who opened the account on April 9, 1984, though both defendants used names other than their own during the transaction, gave home addresses which were not the residence of either, supplied an organization tax identification number which was in fact a social security number registered to someone else, and supplied a Business Certificate for Partners which listed an answering service as the business address.

The account was opened with a two-hundred dollar cash deposit. The next day, April 10, 1984, a United States Treasury check made payable to the American Bank Note Company for $25,926--later identified as stolen--was deposited into the account.

All withdrawals and checks written upon the account required the signatures of both Rett Price and Tiffinny Harrison, the aliases used by Samuel and McBride respectively when they established the account with the Bank. Bank policy required that checks such as this one be held for 7-10 business days before the funds became available; therefore, no withdrawals against the $25,926 could be made before April 17, 1984. Prior to that date, two checks were written against the account for $75 and $125, and, therefore, on April 17, 1984, any remaining funds in the Hit Show account were traceable solely to the deposited stolen Treasury check. Between April 17 and 24, 1984, more than $25,000 was withdrawn from the account through the use of checks in various amounts. None of the checks was actually presented by defendant Samuel.

On April 19, 1984, McBride cashed a $5,000 check drawn on the account and made payable to "cash." Later that day one Sylvia Hoffman unsuccessfully attempted to negotiate a "Hits Shows" check made out to "cash" in the amount of $5,200; McBride telephoned the bank to inquire as to why Hoffman's withdrawal had been denied; McBride returned with Hoffman to the bank to make positive identification of her, explaining that Hoffman was a "consultant"; Hoffman and McBride then endorsed the check, and the bank cashed it.

Later that day, Thomas Poole, the bank vice-president responsible for approving large checks before payment, received a telephone call from defendant Samuel inquiring about the procedures for having checks cashed by messenger. Poole explained that the bank would not cash such checks without written instructions from a signatory on the account. The following day, April 20, 1984, Samuel sent a messenger, Clyde Gabriel, to the bank to negotiate a "Hit Shows" check made out to "cash" in the amount of $5,000. Gabriel also presented a letter signed by "Rett Price" authorizing the disbursement. The bank cashed the check.

On April 23, 1984, appellant and Hoffman returned to the Bank; Hoffman cashed another $5,200 check; and appellant deposited a second stolen Treasury check. This check in the face amount of $90,000 was made payable to Leah Scheidlinger or Beatrice Eisman; it aroused the suspicions of Poole. Poole asked the appellant to identify the payees named on the check, and she replied that they were investors in the Hit Shows Enterprise; Poole later determined this to be untrue.

On April 24, 1984, a "Hit Shows Enterprise" check in the amount of $5,000 was presented by McBride and cashed by the Bank. After payment on this check, approximately $500 remained available in the account. Under the Bank's 7-10 day clearance policy, funds from the $90,000 deposit could have become available sometime between April 30 and May 3, 1984. On May 2, 1984, both Samuel and McBride attempted to make withdrawals from the account. Samuel attempted to have his messenger, Gabriel, negotiate a check drawn on the "Hit Shows" account, made out to "cash", and endorsed by both signatories on the account. With the assistance of Gabriel, United States Secret Service agents arranged to meet Samuel at a street corner in Queens; this meeting resulted in Samuel's arrest.

The same day, appellant McBride and William Johnson, her cousin, drove to the Bank; first, Johnson entered the bank alone and attempted to negotiate a four thousand dollar check drawn on the Hit Shows account and made out to "cash". However, when the bank refused to cash it, Johnson left the bank; thereafter, McBride entered the bank and was arrested by agents of the Secret Service.

The theory of appellant's defense was that McBride lacked culpable knowledge and was misled by her codefendant Samuel. Appellant presented no witnesses, other than the attempted introduction of expert testimony by a psychiatrist, Dr. Naomi Goldstein. It was the position of the defense that such testimony was necessary to assist the jury in its assessment of appellant's According to the November 11, 1984 report of Dr. Goldstein, who was appointed by the court to determine appellant's competence, appellant had been the victim of a brutal assault by her former husband, which resulted in some residual organic brain impairment. Dr. Goldstein stated in her report that appellant was competent to stand trial, had a good understanding of the charges against her, understood the proceedings, and was able to assist in her defense. However, in her conclusion, Dr. Goldstein wrote that what was "most striking about Mrs. McBride [was] her poor judgment" and that she thought that McBride "would have been quite vulnerable" at the time in question; still, the doctor declined to offer an opinion as to the issue of responsibility. Further, Dr. Goldstein reported that appellant was "[c]learly ... functional but impaired."

state of mind. This testimony was claimed to be crucial because the defense did not attempt to controvert the prosecution's evidence and instead sought to show that appellant lacked the requisite specific intent.

When appellant's counsel attempted to call Dr. Goldstein as a defense witness at the trial, the district court rejected the proffered testimony, questioned the validity of psychiatry generally, and pointed out that "psychiatry is still in its infancy." Then, the trial judge pointed out that there was a possibility of confusing the jurors and that "[a]ny doubt[s] that I have, however, are resolved by the fact that there is no predicate against which the testimony can be offered, absent the defendants' own testimony" and, at an earlier point in the colloquy on this issue between the judge and defense counsel, stated that "the fact that she is not testifying ... is absolutely deadly to your position." The court also suggested that allowing this testimony would "give a clear opportunity ... [to have] the defendant's view of the crime ... put forth by the psychiatrist without the defendant herself being subject to cross-examination on the matters." The court refused to allow Dr. Goldstein to testify and refused to allow the November 11, 1984 report to be read into evidence. The district judge did allow the report to be marked as an exhibit for use on appeal.

For the reasons stated below, we reverse this ruling and remand for a new trial.

DISCUSSION

A district judge has broad discretion with respect to the admission of expert testimony, Hamling v. United States, 418 U.S. 87, 108, 94 S.Ct. 2887, 2902, 41 L.Ed.2d...