United States v. May

• Citation: 430 F.2d 715
• Decision Date: 02 September 1970
• Docket Number: No. 20040.,20040.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bernard Abney MAY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

430 F.2d 715 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Bernard Abney MAY, Defendant-Appellant.

No. 20040.

United States Court of Appeals, Sixth Circuit.

September 2, 1970.

Francis D. Burke, Pikeville, Ky., for defendant-appellant; Burke and Justice, Pikeville, Ky., on brief.

Eugene E. Siler, Jr., U. S. Atty., Lexington, Ky., for plaintiff-appellee.

Before WEICK, McCREE and BROOKS, Circuit Judges.

BROOKS, Circuit Judge.

The defendant-appellant, Bernard Abney May, was convicted following a jury trial of unlawfully transporting in interstate commerce a falsely made and forged security check in violation of 18 U.S.C. § 2314. The one issue raised on appeal is the sufficiency of the evidence to establish whether the defendant knew that the transported check was falsely made and forged.

Defendant cashed the check for $4,225 at a branch of the First National Bank of Pikeville, Kentucky. It was payable to May Car Company and was endorsed by the defendant, May Car Company, Bernard May owner. It was drawn on a branch of the First National Bank of Ironton, Ohio and purported to have been against the account of Orline A. Gillmin. The proceeds of the check were paid to the defendant except for some $400 which was applied to various notes held by the bank on which the defendant was endorser. The check was dishonored when presented through regular banking channels to the Ohio bank. There was no account in the name of Orline A. Gillmin.

The defendant does not deny that the check was falsely made or forged and that it was transported in interstate commerce. He bases his defense on the claimed lack of requisite knowledge that the check was falsely made or forged. The defendant's motions for judgment of acquittal made at the close of the evidence offered by the government and at the close of all the proof were denied.

The evidence relied upon by the government to establish that the defendant knew that the check was falsely made, as is usual when proving intent, is all circumstantial. When the defendant presented the check to the Pikeville Bank where he was a customer, he told the branch manager that he had an invoice for four automobiles which he had purchased for the purported drawer of the check. He stated he had done business with drawer of the check before, knew he was all right and that he, the defendant, would profit by approximately $725 from the transaction after paying for the automobiles.

A former F.B.I. agent testified that the defendant told him that on August 24, 1968, the night before the date of the check, the defendant was in a poker game in Portsmouth, Ohio and won the check in the game. He first stated that he did not win the check from the purported drawer, whom he said was named Pete Gillison (the last name of the drawer of the check as it appears on the exhibit is Gillmin), but later changed his statement and said he had in fact won the check on a bet from Gillison and that he himself had filled in the name May Car Company as the payee. He refused to identify any other participants in the poker game stating they were hoodlums and he was fearful of divulging their identity. He also stated that Gillison was a car dealer from Cleveland, Ohio, with the C & T Motor Company, that he was well known in the Portsmouth area and could be located without difficulty. When pushed to reveal the names of the poker players who could verify his story, he stated that since no warrant had been issued for his arrest, it would be foolish to divulge such information, but if and when his case reached the prosecution stage he would then bring forth witnesses to this poker game.

When the F.B.I. agent interviewed the defendant on a subsequent occasion, the defendant told him that he had been unable to locate the drawer of the check and had even forgotten his name. He stated during the course of the interview both that he thought the check was good and that he was suspicious of it. He related first that he had deposited...