The opinion of the court was delivered by: Bua, District Judge.
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
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
Under 18 U.S.C. § 3143(b), the defendant bears the burden of
proving four conditions before a court may grant bail pending
(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 ...