Appeal from decision and order of the United States District Court for the Eastern District of New York, Bramwell, J., affirming appellant's conviction for unlawfully conveying a United States Treasury check in violation of 18 U.S.C. § 641 (1982).
Before MANSFIELD, MESKILL and CARDAMONE, Circuit Judges.
This is an appeal from an order of the United States District Court for the Eastern District of New York, Bramwell, J., affirming a judgment of conviction imposed upon appellant by Magistrate Caden for the unlawful conveyance of a United States Treasury check in violation of 18 U.S.C. § 641 (1982). We affirm in part, reverse in part and remand to the district court for further proceedings.
In May 1983 appellant Ayman Kallash obtained a $10,000 United States Treasury check made out to Lester and Helen Evenchick. The endorsement on the check was a forgery. Kallash transferred the check in payment of a debt.
A superseding information filed on March 14, 1984 charged that Kallash:
[o]n or about the 16th of May, 1983, within the Eastern District of New York . . . did knowingly and willfully, without authority, convey and dispose of a thing of value of the United States, specifically, United States Treasury Check No. 1,168,539, having a value in excess of Ninety Dollars ($90.00). (Title 18, United States Code, Section 641).
With the charge thus framed as a misdemeanor, Kallash's case was tried to a jury before Magistrate Caden on March 20 and 21, 1984. The parties stipulated that the check had been conveyed without authority. The only issue at trial was whether Kallash had conveyed the check knowing at the time that it had been stolen.*fn1
Magistrate Caden's jury instructions on the element of knowledge included the following:
If you find from all the evidence beyond a reasonable doubt that the defendant believed the the [sic] check was stolen but deliberately and consciously avoided confirming that it was stolen so that he could say, if he was apprehended, that he did not know, you may treat this deliberate avoidance of positive knowledge as the equivalent of knowledge.
In other words, you may find a defendant acted knowingly, if you find either that he actually knew the check was stolen or that he deliberately closed his eyes to what he had every reason to believe was the fact.
App. of Appellant at 11-12 (emphasis added).*fn2
At a preliminary conference on the jury charge, the government attorney objected to the use of "believed," arguing that instead the charge should read: "the defendant was aware of the high probability that the check in question here was stolen." Tr. 145. Magistrate Caden questioned whether this "high probability" language, recommended by this Court in United States v. Cano, 702 F.2d 370, 371 (2d Cir. 1983), comported with the ...