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UNITED STATES v. BUCHBINDER

August 13, 1985

UNITED STATES OF AMERICA, PLAINTIFF,
v.
SAMUEL BUCHBINDER, DEFENDANT.



The opinion of the court was delivered by: Bua, District Judge.

ORDER

Before the Court is defendant's motion for bond pending appeal of his conviction. Defendant was convicted of ten counts of wire fraud and subsequently sentenced to six months imprisonment and five years consecutive probation. For the reasons stated below, defendant's motion is denied.

I. FACTS

Defendant Samuel Buchbinder was charged in an indictment with nine counts of wire fraud in violation of Title 18, United States Code, Section 1343. The jury returned verdicts of guilty on all nine counts.

The wire fraud counts charged that the defendant entered into a scheme to defraud the brokerage firm of Paine, Webber, Jackson & Curtis by giving it bad bank drafts in connection with a commodities trading account. The evidence at trial established that the defendant opened a commodities trading account on September 2, 1982 with $4,600 cash. By the end of the day on September 7, 1982, the defendant had lost all the money he had previously deposited and presented Paine Webber with a $50,000 draft on an account at the Canadian Imperial Bank of Commerce, Nassau, Bahamas (CIBC), to cover his losses. Defendant gave Paine Webber a total of $170,000 in bad bank drafts knowing that there was no money to back the drafts. Additionally, defendant withdrew approximately $40,000 cash from his Paine Webber account based on the bad bank drafts.

In the course of writing the bad bank drafts, defendant not only wrote three false drafts but also made wire transfers of the proceeds of the bad bank drafts from his commodity account to various other cash and equity accounts in his name and his wife's name.

II. DISCUSSION

Under 18 U.S.C. § 3143(b), the defendant bears the burden of proving four conditions before a court may grant bail pending appeal:

  (1) that the defendant is not likely to flee or pose
  a danger to the safety of any other person or the
  community if released;

(2) that the appeal is not for purpose of delay;

  (3) that the appeal raises a substantial question of
  law or fact; and
  (4) that if that substantial question is determined
  favorably to defendant on appeal, that decision is
  likely to result in reversal or an order for a new
  trial of all counts on which imprisonment has been
  imposed. United States v. Hall, 603 F. Supp. 333, 335
  (N.D.Ill. 1985) (quoting U.S. v. Miller, 753 F.2d 19,
  24 (3d Cir. 1985).

In this circuit, a "substantial question of law or fact" is defined as "a `close' question or one that very well could be decided the other way." United States v. Molt, 758 F.2d 1198, 1200 (7th Cir. 1985). See also United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985); United States v. Randell, 761 F.2d 122, 125 (2d Cir. 1985). If a court does find that a question raised on appeal is "substantial," it must then consider whether that question is "so integral to the merits of the conviction on which defendant is to be imprisoned that a contrary appellate holding is likely to require reversal of the conviction or a new trial." Randell, supra, 761 F.2d at 125 (quoting Miller, supra, 753 F.2d at 23). As to all of the four conditions for bond pending appeal, the defendant bears the burden of persuasion. Randell, supra, 761 F.2d at 125.

In his memoranda in support of the motion for bond pending appeal, defendant argues that two principal issues are "substantial questions" justifying bond under 18 U.S.C. § 3143(b). First, he argues that the Court committed reversible error by excluding psychiatric testimony offered to prove severe depression and consequent compulsive gambling, which would negate his specific intent necessary to commit wire fraud. Second, defendant's counsel prior to and at trial failed to raise the mental condition defense in a timely manner and defendant was thereby denied effective assistance of counsel in violation of the Sixth Amendment of the U.S. Constitution.

A. Exclusion of Psychiatric Testimony

1. Failure to Provide Timely Notice Under ...


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