Appeal from a judgment of the United States District Court for the Southern District of New York, entered after a jury trial before Richard Owen, Judge, convicting appellant of transporting or causing to be transported in interstate commerce falsely made checks in violation of 18 U.S.C. §§ 2314 and 2. The principal claim is that since criminal intent was not in issue the district court erred in admitting evidence of other subsequent crimes, committed by appellant more than four months after the alleged crime at issue, as probative of appellant's unlawful intent. Reversed and remanded for a new trial.
Before Lumbard, Mansfield and Oakes, Circuit Judges.
Ekram Manafzadeh appeals from his conviction after a jury trial in the United States District Court for the Southern District of New York, Richard Owen, Judge, on two counts of unlawfully transporting or causing to be transported in interstate commerce falsely made checks in violation of 18 U.S.C. §§ 2314 and 2.*fn1 Manafzadeh was sentenced to concurrent five-year terms of imprisonment on each count and is presently serving his sentence.*fn2 On appeal, Manafzadeh raises five issues, the primary one being the Government's use in its case-in-chief of evidence of subsequent crimes by the defendant. Since we conclude that the admission of the other-crimes evidence was improper in this case, we reverse the conviction and remand for a new trial.
In September, 1976, Hossein Mohammad Kia,*fn3 an Iranian citizen, entered the United States and checked into the Hilton Hotel, Washington, D.C. While Kia was still in Washington, Manafzadeh, also Iranian, traveled from New York City to Washington and also stayed at the Hilton Hotel from September 21 to September 24, 1976. On September 28, 1976, Kia, accompanied by an interpreter,*fn4 went to the Chase Manhattan Bank (hereinafter called "the Chase bank") at 410 Park Avenue in New York City and opened an international checking account in the name of Mehdi H. Barkhordar. In support of his application to open the account Kia produced a false passport and gave a temporary local address, false bank references and false employment information. He also made an initial deposit of $2,000.
On October 12, 1976, Kia and his interpreter deposited six counter checks in the Barkhordar account, three drawn on a nonexistent account at the First National Bank of Miami and three bearing unauthorized signatures for an account at the First National Bank of Chicago.*fn5 Each of the six checks was made payable to "Mehdi H. Barkhordar" in the amount of $950,000, resulting in fraudulent deposits totalling $5,700,000. The dollar amounts on the six fraudulent checks were imprinted by a Hall-Welter Speedrite checkwriter of the 900 or 914 series. At the time when the checks were drawn Aminco Trading Company (hereinafter called "Aminco"), which is wholly owned by Manafzadeh, had a Hall-Welter Speedrite 914 checkwriter at its office,*fn6 which had been purchased in May, 1976. Manafzadeh's fingerprint was found on both the checkwriter and one of the fraudulent Miami checks. After deposit, the checks were transmitted through interstate commerce to the respective drawee banks, where payment was refused.
On October 18, 1976, Kia and his interpreter went back to the Chase bank in New York and had that bank certify five checks drawn on the Barkhordar account for a total of $2,717,500.*fn7 On that same day four of the certified checks were deposited in Aminco accounts in three different banks in New York City. The fifth certified check in the sum of $650,000 was wired by Kia through Western Union to Las Vegas, where Kia, upon receiving money orders from Western Union for the full amount less telegraphic charges,*fn8 kept $44,219.35 for personal use. The remaining $600,000 was returned to New York City in the form of 10 Western Union drafts and deposited in an Aminco bank account on October 21, 1976. The Government's contention at trial was that Manafzadeh was the behind-the-scene "brain" of this scheme and its implementation by Kia and his interpreter.
The defense consisted largely of testimony by Kia, who stated that he had participated in the check fraud with two Americans he knew only by first name and that Manafzadeh was not part of the conspiracy. Kia claimed that he first met Manafzadeh on October 18 when Kia went to the Aminco office under the name of Barkhordar to purchase Iranian bonds, having been referred there by the Iranian Embassy. The certified checks allegedly were given to Manafzadeh as payment for the Iranian bonds, $765,000 worth of bonds having been given to Kia on the spot and the remaining $1,295,000 worth to be delivered to Kia in Iran by Manafzadeh's agent.*fn9
When the Case bank learned of its mistaken certification of the checks, it traced them to the Aminco bank accounts and had those assets frozen by the respective banks. A representative of the Chase bank then negotiated with Manafzadeh for the return to Chase of the funds realized from the deposit of the certified checks.*fn10 Eventually $1,902,500 was returned; the remaining $765,000 Manafzadeh kept, claiming it was proper payment for the $765,000 worth of bonds sold by him to Kia.
Thus Manafzadeh's defense was not that he had innocently or mistakenly participated in the preparation or deposit of any of the six falsely made checks charged in the indictment, which were deposited in the Barkhordar account with Chase. His defense was that he had never been involved in the creation or negotiation of these fraudulent checks at all. He admitted that at a later point he had innocently accepted the certified checks drawn on the fraudulent Barkhordar account but contended that he had received these checks in payment for Iranian bonds sold to Kia.
The subsequent other-crimes evidence was introduced by the Government as part of its case-in-chief and admitted over the objection of Manafzadeh's counsel. According to the testimony of one Matavossian, in February of 1977, approximately four months after the events forming the basis of the indictment, the defendant Manafzadeh tried to recruit him to deposit $10,000 in a bank, using a false name and passport, and then withdraw $50,000 in cash and $2,950,000 in travelers checks. The details of the scheme were never fully explained and the plan was never carried out, although Matavossian testified he was given a false passport. The witness also testified that Manafzadeh told him that the plan was not dangerous because "it has been done several times and nothing has happened." Matavossian also testified that in May of 1977, seven months after the crimes alleged in the indictment, the defendant tried to get Matavossian to purchase some jewelry, using certified checks bearing a counterfeit bank certification. The bill for the rubber stamps apparently used to create the certification was found on Manafzadeh when he was arrested for this subsequent other crime.*fn11
Manafzadeh's counsel objected to the admission of proof of the defendant's subsequent crimes, arguing that this was irrelevant to the only issue in the case, which was whether he had participated in the creation or deposit of the forged checks placed in the Barkhordar account with Chase, the interstate transportation of which was the charge in the indictment. Defense counsel repeatedly offered to stipulate that if the jury found that Manafzadeh had participated in the creation or deposit of the forged checks, then he would concede that the acts had been done with the necessary criminal intent, which would remove any possible contest as to his intent.
The trial judge nevertheless admitted the subsequent-crimes evidence with an instruction that it was to be considered by the jury "only in deciding the question of the defendant's intent on the crime charged in the indictment," (i. e., the transportation of the six forged checks in interstate commerce), provided the Government proved by other evidence that Manafzadeh had "transported or caused the transportation of the forged Chicago and Miami checks in interstate commerce," (T. 236-37). In his summation the prosecutor dwelt at length on the subsequent-crimes evidence. From his resulting conviction Manafzadeh appeals.
Defendant's principal contention is that the district court committed reversible error in admitting evidence of his subsequent other crimes. Such evidence, of course, is not admissible to show that a defendant had a bad character or propensity to commit the crime in issue, although it may be admissible for some other relevant purpose. Fed.R.Evid. 404(b).*fn12 See United States v. O'Connor, 580 F.2d 38, 40 (2d Cir. 1978); United States v. Knuckles, 581 F.2d 305, 314 (2d Cir. 1978); United States v. Williams, 577 F.2d 188, 191 (2d Cir. 1978); United States v. Benedetto, 571 F.2d 1246, 1248 (2d Cir. 1978); United States v. Gubelman, 571 F.2d 1252, 1254 (2d Cir. 1978); United States v. Cavallaro, 553 F.2d 300, 305 (2d Cir. 1977); United States v. Grady, 544 F.2d 598, 604-05 (2d Cir. 1976); United States v. Magnano, 543 F.2d 431, 435 (2d Cir. 1976), Cert. denied, 429 U.S. 1091, 97 S. Ct. 1100, 51 L. Ed. 2d 536 (1977). While we have taken the "inclusionary" approach to this rule, United States v. O'Connor, supra, 580 F.2d at 40, United States v. Benedetto, supra, 571 F.2d at 1248, we have also recognized that such other-crime evidence may not be received unless it is relevant to an actual issue in the case and unless its probative value on that issue is not outweighed by its unfair prejudice to the defendant. See United States v. O'Connor, supra, 580 F.2d at 40-43; United States v. Knuckles, supra, 581 F.2d at 314; United States v. Williams, supra, 577 F.2d at 191; United States v. Benedetto, supra, 571 F.2d at 1248; United States v. Gubelman, supra, 571 F.2d at 1254; United States v. Cavallaro, supra, 553 F.2d at 305; United States v. Grady, supra, 544 F.2d at 604-05. See also Fed.R.Evid. 403.*fn13
There is no presumption that such other-crimes evidence is relevant. United States v. O'Connor, supra, 580 F.2d at 40; United States v. Benedetto, supra, 571 F.2d at 1248. "(Caution) and judgment are called for, and a trial judge faced with an other crimes evidence problem should require the Government to explain why the evidence is relevant and necessary." United States v. O'Connor, supra, 580 F.2d at 43. Otherwise, of course, the accused might be convicted because of his participation in the other crimes rather than because he is guilty beyond a reasonable doubt of the crime alleged.
In the present case Judge Owen admitted the subsequent other-crimes evidence only as relevant to show that Manafzadeh had the intent to commit the crime alleged (i. e., creating or causing the transportation of the six fraudulent checks) and he so instructed the jury.*fn14 The issue before the jury, however, was not Manafzadeh's intent but whether he had anything to do with the creation or deposit of the six fraudulent checks alleged in the indictment or the use of those checks to defraud the Chase Manhattan Bank. His counsel advised the court that if the jury found that he had created the checks or ...