## Facts

- Richard T. Strother, an attorney and businessman, was charged with bank fraud under 18 U.S.C. § 1344 based on an $82,500 check drawn on a Connecticut Bank and Trust (CBT) account that had only $610.
- The check, payable to a clearing firm, related to Strother’s bond transactions and was sent after a demand for payment to avoid liquidation.
- Strother also wrote a second $82,500 check on another account that likewise lacked sufficient funds.
- On June 9, 1989, Strother called Christine Wollschleager, interim manager of CBT’s Saybrook branch.
- The government’s theory was that Strother induced Wollschleager to authorize payment of the $82,500 check by falsely stating he would wire funds to cover it.
- Wollschleager testified Strother asked her to authorize payment and said he would wire funds; she denied he asked her to “hold” the check and stated holding it would violate bank practice.
- Strother’s defense was that he did not request payment; he claimed he asked the bank to hold the check until funds were available and that payment was authorized due to the bank’s misunderstanding.
- To impeach Wollschleager, Strother sought to introduce three internal CBT memoranda created after the incident; none mentioned that he asked the bank to pay the check.
- The district court excluded Wollschleager’s own memo and a probation memo signed by her; it admitted a loss memo but redacted statements attributed to Wollschleager.

## Issues

1. Whether internal bank memoranda that omitted a claimed request to pay a check were admissible as prior inconsistent statements by omission to impeach the government’s key witness.
2. Whether the memoranda were admissible as business records under Federal Rule of Evidence 803(6).
3. Whether excluding the memoranda was harmless error given the centrality of the witness’s credibility and the disputed request for payment.

## Decision

- The Second Circuit reversed the conviction and remanded for a new trial.
- The court held the exclusion of Wollschleager’s memorandum and the probation memorandum she signed was erroneous because they were admissible for impeachment as prior inconsistent statements, including inconsistency by omission.
- The court concluded the memoranda also qualified as business records under Rule 803(6).
- The evidentiary errors were not harmless because they bore directly on the dispositive factual question and on the credibility of the government’s chief witness.

## Legal Principles

- A prior statement may be “inconsistent” for impeachment purposes not only by direct contradiction but also by omission when it would have been natural to include the omitted fact if it were true.
- A document prepared by a witness is the witness’s prior statement; a document authored by another may be treated as the witness’s prior statement if the witness adopted it (including by signing it).
- Internal institutional memoranda created in the regular course of documenting significant events and losses may qualify as business records under Federal Rule of Evidence 803(6).
- Excluding impeachment evidence is not harmless when the prosecution’s case turns on a key witness’s credibility concerning a dispositive fact.

## Conclusion

Because the excluded bank memoranda could have materially undermined the government’s primary witness on whether Strother requested payment of the check—an issue the prosecution treated as necessary for criminal liability—the Second Circuit found prejudicial evidentiary error, reversed the conviction, and ordered a new trial.


United States v. Strother, 49 F.3d 869 (2d Cir. 1995)