Appeal from a conviction after trial by jury in the United States District Court for the Southern District of New York (Goettel, J.). Appellant claims the court erred in its instruction as to conscious avoidance of knowledge, use of the term "real probability" as it related to reasonable doubt, and refusal to allow the testimony of an expert psychiatric witness. Reversed and remanded.
Before MANSFIELD, PIERCE and PRATT, Circuit Judges.
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.
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. § 371, two counts of conversion of government property in violation of 18 U.S.C. §§ 641 and 642, and one count of bank larceny in violation of 18 U.S.C. §§ 2112 and 2113(b). She was sentenced to eighteen month 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 Defendant Samuel withdrawn his appeal of his conviction on all counts.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 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 telephone 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 back 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 ...