text:
WILLIAMS v. UNITED STATES
- 1980-1989
Legal provision: 18 U.S.C. 1014
Chief Justice Burger: We will hear arguments next in Williams against the United States.
Mr. Chilivis: Mr. Chief Justice and may it please the Court:
This case is here on writ of certiorari to the Fifth Circuit Court of Appeals.
The general questions presented are: whether the Congress, in passing Section 1014 of Title XVIII of the United States Code intended to proscribe the deposit of a bad check or 1014.
In this case there were three counts of an indictment and Mr. Williams, the Petitioner, was convicted on all three counts.
The first count was a misapplication count and really is only indirectly in issue in this case.
The other two counts both involved an allegation of the overvaluation of a security, that is a check, in order to influence the action of a federally... excuse me... insured bank on an advance or extension of credit.
Unidentified Justice: All three counts were under 1014?
Mr. Chilivis: Two counts.
Unidentified Justice: Two counts.
Mr. Chilivis: Yes, sir.
Now, in this case the Court has limited the consideration on certiorari to two counts, counts two and three.
But I think it's significant that we consider what counts two and three were.
Count two was the overvaluation of 58,500 which was deposited, drawn on the Winn State Bank and deposited in the Pelican State Bank.
Unidentified Justice: At a time when there were no funds to support it?
Mr. Chilivis: At a time when there were insufficient funds to support it, yes, sir.
And the Government--
Unidentified Justice: That would have something to do with its value, wouldn't it?
Mr. Chilivis: --Yes, sir.
It was a check that did not have funds to support it, yes, sir.
Now, that check did clear the bank in the normal course of things.
It was not dishonored; it was paid, and it never came back.
The other check was a $60,000 check drawn on the Pelican State Bank, which was deposited in the Winn State Bank, and that covered the first check.
That check too was paid by the bank and was not returned for insufficient funds, although at the time it was deposited there were not funds in the bank sufficient to cover it.
Now, the Pelican State Bank, which was where it all started, had the choice in that instance of bouncing the check or extending credit on the check, which resulted in an overdraft.
It chose to extend credit and have an overdraft.
Now, when this transaction started Williams had an overdraft at the Pelican State Bank.
Now, we ask the Court to bear in mind that this started off with an overdraft at the Pelican State Bank on May the 9th of something over $58,000.
The whole transaction ended on May the 11th, two days later, with an overdraft at the Pelican State Bank of something less than $60,000.
No check was dishonored.
No check was bounced.
And it was two separate checks.
Now, we mention that because we raised this issue in the Court of Appeals, that is the sufficiency of the indictment under Section 1014.
The Court of Appeals summarily dismissed that by saying that the argument was without merit, because the two transactions at the two banks constitute classical check kiting, and under Payne, which was a Fifth Circuit case, this check kiting falls within the scope of Section 1014.
Now, that's significant because they used both counts of the indictment to create the concept of check kiting.
And as we know and as this Court has held, you cannot do that.
Each count must stand on its own and you cannot say that if both counts constitute an offense then one can be used in the other count unless it's incorporated therein by reference.
In this case it wasn't done.
Now, the argument in this case ought to be simple, then.
In its simplest terms, no crime was alleged in the indictment under counts two and three and no crime was proved within Section 1014.
However, the case has become complicated.
It's become complicated because the Government contends that a check is a security, a security under Section 1014.
Now, I remind the Court of the language of Section 1014.
It says:
"Whoever makes a false statement or report, or whoever overvalues land, property or security for the purpose of influencing a federally insured bank to extend credit or make advances."
and so on and so forth.
It uses the word "security", not "a security".
But in this case the Government claims that a check is a security and therefore this constituted the overvaluation of a security.
Unidentified Justice: Counsel, I suppose that a check could be property in any event.
Mr. Chilivis: A check could be property, but not in the sense of this Code section.
A check could be property.
But this says
"land, property or other security."
Unidentified Justice: But the point is, I don't think we have to look just at "security" in view of the broader term of "property".
Mr. Chilivis: A check could be property.
Unidentified Justice: Yes.
Mr. Chilivis: And the Government makes that argument.
But not in the context of that, and I'll get further into that.
Unidentified Justice: But it says "other security", "other security".
Mr. Chilivis: That's correct.
Unidentified Justice: So I mean, the only property it's talking about is property that's security.
Mr. Chilivis: That's correct.
Unidentified Justice: I don't think it does say "other security", does it?
Mr. Chilivis: It says "land, property or security".
Unidentified Justice: "Or security", yes.
It doesn't say "other".
Stocks would clearly be covered, wouldn't they, stocks or bonds?
Mr. Chilivis: Stocks or bonds would be covered if they are pledged as security.
But they're talking about security in the sense of collateral, and this was not that.
Unidentified Justice: You say whatever... you say that it should be read as meaning "other security".
Mr. Chilivis: Yes, sir.
And security in th sense of collateral.
Unidentified Justice: Yes.
Mr. Chilivis: Yes, sir.
Unidentified Justice: And you think the legislative history helps you on that?
Mr. Chilivis: Oh, yes, sir.
Yes, sir.
Unidentified Justice: Why do you think it would help you if it read "other security" rather than just "security"?
Mr. Chilivis: Well, I think that it's security in the sense of collateral.
I think you may apply the doctrine of eiusdem generis and say that it relates back to the type of security that land or property is.
But I really say that it talks about security in the sense of collateral, not a security in the sense of a stock or a bond used for something other than collateral.
The Government's position is--
Unidentified Justice: You mean this wouldn't... if you were going to a bank for a loan and they made you fill out a loan application and they wanted to know what your assets were, and you fill it out and you overvalued the property that you own by about ten times.
Mr. Chilivis: --Yes, sir.
Unidentified Justice: And many times banks don't take security on all of your property.
They just want to know how much property you got.
Mr. Chilivis: That's correct, sir.
That would be a violation.
Unidentified Justice: Well, then it doesn't mean collateral.
Mr. Chilivis: No, sir, because there're are two elements of it.
One of them says
"whoever shall knowingly makes a false report or statement."
"a false statement or report".
Unidentified Justice: Yes.
Mr. Chilivis: Now, that's what you're talking about.
Unidentified Justice: Yes, but it's not just about collateral.
Mr. Chilivis: Well, but it's about if you overvalued security in that sense, that's correct, it's not about collateral.
Unidentified Justice: No, so that you wouldn't... so that section isn't limited to property that's collateral.
It's limited... it just says "property", if overvaluing that property might influence a bank decision.
Mr. Chilivis: Well, that's true.
That's true.
Unidentified Justice: Well, must not the statute be read by having the word "any" modify all the terms that follow, that is, "any land", "any property", or "any security"?
Mr. Chilivis: I think you could read it that way, sir.
Unidentified Justice: Could you read it any other way?
Mr. Chilivis: I don't know whether you could or not.
You could read it the way it's written, I guess.
Unidentified Justice: Well, is this check "any property"?
Mr. Chilivis: Well, it is property, yes, sir.
But it was not used... it says "for the purpose of extending"...
"of an extension of credit or an advance or a loan."
It's talking in terms of commercial and consumer credit.
It's not talking about the presentation of a check to a bank for the purpose of having the bank collect it or whatever purpose the bank used it for.
Unidentified Justice: What if the bank practice, though, is to immediately credit the account, which was true in this case?
If you can immediately draw on that credit and if it turns out that the check isn't collected, the bank can sue you.
Mr. Chilivis: That's correct.
Unidentified Justice: Well, you certainly are extending... you certainly are getting credit from the bank if the bank gives you... lets you use that money without ever having collected the check.
Mr. Chilivis: But you have two things that occur.
One is the crediting your account is not an extension of credit.
That's been held by one of the circuits, the Crown case which was recently decided.
It's not an extension of credit.
But if you say that they draw on that, that that constitutes a commercial loan transaction, then that's one thing.
But we submit, Your Honor, that it doesn't, and in order to reach that result in this case it requires such convoluted reasoning that it does not give a person any warning that under this statute they are violating a criminal law.
And we say that... now, we didn't raise the constitutional question of impermissible vagueness, but that's what the principle is about.
Unidentified Justice: Well, long before you get to a constitutional principle of impermissible vagueness, you get to some sort of a principle of leniency in statutory construction.
Mr. Chilivis: That's correct, Your Honor.
And one of the... you ask about the legislative history.
Let me address that question by stating this.
This statute up until 1970 did not include any institution that could accept checks from private customers for deposit.
In 1970 the Congress merely passed a law adding certain federally insured banks and federal savings an loan institutions.
There was nothing that did anything but that.
That's all they did.
Now, at the same time this Congress amended a bad check law in the District of Columbia.
That bad check law covers the conduct that the Government says ought to be covered here.
In that law they use the words
"check, draft or other instrument."
used at a bank, or that sort of thing.
They made it clear what they were talking about.
Now, it seems to me that if Congress had intended to include a check or a draft under this statute, all they had to do was what they did when they amended the District of Columbia Act.
Unidentified Justice: Well, why do you concede, then, that a check is property--
Mr. Chilivis: Well, a check--
Unidentified Justice: --for purpose of the statute?
Mr. Chilivis: --A check is property, but not in the terms of the statute.
Unidentified Justice: So you don't concede a check is property?
Mr. Chilivis: Oh, no, sir.
I say a check is property.
A check can even be security, because if I tender to a bank several checks and say, hold this for a loan, when I get an extension, when I borrow money from the bank, it can be security.
But in the terms of this statute and this situation, it is not.
And the statute was never intended to include that.
If they did, why did they say "land, property or security"?
Why didn't they say what they said in the same year, 1970, when they passed the last amendment to this Act, when they added banks and federal savings and Loan institutions?
Why didn't they say "check" instead of "land, property or security"?
We think that's part of the legislative intent.
In addition to that, we cite in our brief several situations where we quote from the House Banking and Currency Committee when they say it's intended to cover a borrower.
We quote from the Senate Banking and Currency Committee, which talks about the 1970 amendment and says it simply adds institutions that are covered under the Act.
Unidentified Justice: But if you go to a bank and present a check drawn on another bank and ask for cash and the bank gives you cash without having collected the check, and you know very well that the check isn't any good, d you think you've got a loan from the bank?
Mr. Chilivis: No, sir.
Unidentified Justice: What have you got?
Mr. Chilivis: Well, what I've got is a normal--
Unidentified Justice: Do you think you'd end up owing the bank some money?
Mr. Chilivis: --Oh, yes, sir.
Yes, sir, I would.
But that happens--
Unidentified Justice: Have you been extended credit?
Mr. Chilivis: --Well, not under the terms of this statute.
Let me explain it this way, because I don't want to dodge the question.
Under Louisiana law, when you present a check to a bank for deposit you engage that you will, upon notice of dishonor, make that check good.
That's what you engage.
Unidentified Justice: Like if you give me the cash or give me the credit, you can treat this check as a note, and I promise to pay.
Mr. Chilivis: It's in the form of a note, yes, sir.
It's in the form of a note.
And what you do, you engage that, and that's the only representation you make, unless you orally or in writing make some other representation.
Unidentified Justice: I promise to pay for this, pay you back for this extension of money or credit?
Mr. Chilivis: That's right.
You are getting it on an uncollected check.
You promise to pay only if the check is dishonored and the bank protests and gives you notice of dishonor.
Unidentified Justice: Well, is this really any different if you go to the bank and say, please loan me $500, and they say, fine, sign this check, sign this note, and you sign the note?
Mr. Chilivis: Yes, sir, because in that instance it is a commercial transaction where you are borrowing money.
In the other instance you are merely depositing a check and they are giving you immediate credit, which is a unilateral decision on the bank.
Unidentified Justice: It should be even worse, because it's interest-free.
Mr. Chilivis: Well, there's no evidence in this case it was interest-free.
This was an overdraft.
Unidentified Justice: Let me put this hypothetical to you.
Suppose a man that has a good standing with a particular bank, good standing in the community, so he's trusted--
Mr. Chilivis: Yes, sir.
Unidentified Justice: --He goes to the bank and hands them a $50,000 check on a nonexistent bank, and the signature is forged.
Would he have violated this statute?
Mr. Chilivis: If he gives them a check on a nonexistent bank where the signature is--
Unidentified Justice: Forged signature, but it's payable to him, and the bank, because it trusts him, simply says, yes, here's your $50,000.
Has he violated this statute?
Mr. Chilivis: --No, sir, I don't believe he has.
Unidentified Justice: You don't think so?
Mr. Chilivis: Not this statute, no, sir.
Whether he has violated all 50 states' bad check laws, which is another thing that's involved in the history and rule of lenity, and that is that all 50 states in 1970 had bad check laws that covered that conduct and this has historically and traditionally been the subject of state regulation.
And if Congress had intended to make such broad inroads and intrusions into state law, then certainly it should have said something to let people know that that's what it was doing.
Unidentified Justice: May I ask you a question.
I wonder if the statute requires that credit be extended pursuant to a false application.
In other words, supposing you went into a bank and said, I want to open a checking account and I'm going to file an application, and you make a lot of false statements on where your other accounts are.
Mr. Chilivis: No, sir.
No, sir, it does not require that.
Unidentified Justice: The statutory language is awfully broad.
Mr. Chilivis: It is broad, and it says
"to influence the extension of credit or advance."
or forebearance and that sort of thing.
But it does not have to actually influence as long as it was intended to influence.
Unidentified Justice: Well, if such an application were merely intended to influence the bank, A, to open the account, and B, to put you on their list of good customers, so the next time you come in they'll treat you well, wouldn't that violate the statute?
Mr. Chilivis: No, sir, because they're talking about extensions of credit, advances, loans, commitments, that sort of thing.
Unidentified Justice: It says it's a false statement and so forth, upon any application, comma, advance, comma, discount, comma, purchase, purchase agreement, repurchase agreement, commitment or loan.
Now, they'r making a commitment to you that they'll deal with you a a depositor.
Or any change or extension or any of the same--
It's awfully broad language.
But you jus think it does require that--
Mr. Chilivis: Your reasoning is good up t the point where the interpretation of the word "commitment" is used to commit to open a bank account.
Unidentified Justice: --Well, I can understand that's the central thrust of the statute.
Mr. Chilivis: It's an agreement to make a loan or to extend credit in a commercial, consumer type setting.
Unidentified Justice: This one-sentence statute, two pages long; it's difficult to parse down.
Mr. Chilivis: I know it is.
Unidentified Justice: But in going to that section, that part of it that my Brother Stevens just referred to, what's "deferment of action or otherwise"?
That's the broadest possible, isn't it?
"Or otherwise"; it seems to embrace almost anything.
Mr. Chilivis: Well, the... I don't know what "or otherwise" means.
The only time it has been interpreted was in the Pinto case, and in that case what they did there... I believe it was the Pinto case... where the man had gotten an erroneous credit of $193,000 when it was supposed to be $193.
And after it was all found out that he had gotten the erroneous credit, he lied to the bank.
He told an intentional falsehood in order to get them to defer action or otherwise.
And they used it in the sense of defining deferring action.
And I don't know what it means other than that.
But it certainly cannot cover a bad check.
Unidentified Justice: But when you put a check into a bank, do you not, in the words of the statute, influence the bank to extend you the credit that goes with that?
Mr. Chilivis: No, sir, I don't think so, for two reasons: Number one is, when you put the check in the bank you are not making a statement other than what the law says you're making, and that is that you will pay the check in the event it is dishonored and you have notice of dishonor.
All right, that's number one.
Number two, it is not security for anything.
It is not security for anything.
Now, admittedly under Louisiana law they have a lien on an uncollected item until such time as they send it out for purposes other than collection or until such time as it's collected.
But again, if you have to take the Uniform Commercial Code or if you have to take the Louisiana Revised Statutes and compare them and then say that because they have a lien at some time for some period on uncollected items, then that fits into security or the influencing of a loan in this case, then that's too convoluted to come under a statute which talks about land, property or security for the extension of credit.
And that's one of the points we're making.
Unidentified Justice: Let me go back and see if I understand your answer to my question.
A man goes to the bank with a $50,000 check.
It's no good.
Because of his standing, they either give him cash or let him cash a check on his personal account for anywhere up to that amount.
Has not his conduct influenced the bank to do something very important here?
Mr. Chilivis: It's influenced them to issue money on an uncollected item.
It has done something.
Unidentified Justice: You say that's not a violation of the statute?
Mr. Chilivis: No, sir, it's not a violation.
It's a violation of a state statute, and if they can prove intent to defraud it may even come under other statutes.
Of course, you'd have to use the wire or the mails to do that.
But this statute is sort of a strict liability statute.
You don't have to prove that they intended to defraud, and the Government takes the position that the mere giving of a check that at the time it's presented to the bank does not have sufficient funds to cover it if he's given immediate credit on it constitutes a violation.
I suggest to Your Honors--
Unidentified Justice: And if he knows that it won't be... that's it's an overdraft.
Mr. Chilivis: --No, sir.
No, sir.
Unidentified Justice: Well, surely the "willfully"--
Mr. Chilivis: No, sir.
No, sir.
He says "knowingly", knowing that at the time it's presented for deposit that there aren't sufficient funds to cover it.
Now, that doesn't mean that he doesn't have a reasonable expectation to cover it when it's presented, and I was just about to say that I submit that everybody has done that, deposited a check in the bank and covered it the next day at the receiving bank, the drawee bank.
But that's what is contended to be a crime, and you don't even have to prove, under the Government's contention, that there was an intent to defraud, because this statute does not embrace the intent to defraud.
Now, the deposit, in response to Mr. Chief Justice's question, if you take that just a little bit further and you make that a certified check that is known to be false, then I think you could have a violation of this statute.
Now, the for that is reason this.
If I--
Unidentified Justice: --What's the difference?
What's the difference, except the one is more impressive than the other?
Mr. Chilivis: --No, sir.
The difference is what the legal representation is.
As I said before, when you have a check uncertified the legal representation under Louisiana law is that you will honor it on notice of dishonor.
Now, if it's a check drawn on a bank and it's certified, then the representation is that the bank has the funds already on hand to cover that check and that it will be honored.
If you--
Unidentified Justice: And that the money had been set aside.
Mr. Chilivis: --Has been set aside, and that's the representation you make by the mere presentation of the check.
And if you know that to be false, then you have made a false representation.
Unidentified Justice: Well, you made a false representation... I realize that a certified check may be different in that respect.
But I thought you said that a check was not either land, property or security, and therefore I don't see why that element of the offense would be proved any more by a certified check than by a personal check.
Mr. Chilivis: Well, I don't think it is property, land or security.
Unidentified Justice: Well, why do you concede that a certified check might violate the statute?
Mr. Chilivis: Well, it depends.
If you got immediate credit, it might violate the other portion of the statute, Your Honors, the false statement for the purpose of influencing the extension of credit.
Unidentified Justice: But the false statement has to be with respect to any land, property or security, doesn't it?
Mr. Chilivis: No, sir.
No, sir, it does not.
Unidentified Justice: Well, you have to willfully overvalue land, property or security.
Mr. Chilivis: No, sir.
No, sir.
There are two separate elements.
A false statement or report has to do with one element to influence.
The other is the overvaluation of land, property and security.
Now that's one of the problems here.
Unidentified Justice: Oh, I see.
Mr. Chilivis: You see?
One of the problems here is they didn't charge this man with the first element, that is making a false statement or report.
They charged him with the second element and they tried to fit it in by calling it a security.
And that's the point I was trying to make.
Unidentified Justice: The second element... this is in the disjunctive, isn't it?
Those are two separate offenses, isn't it?
Mr. Chilivis: Yes, sir.
That's two separate offenses.
Unidentified Justice: Well, I thought you... perhaps I misunderstood you.
I thought you were saying the offense had to show two elements, a false statement and willful--
Mr. Chilivis: No, sir.
I was making the opposite point.
The distinguishing factor is that one of them is a false statement, and the security has nothing to do with that.
I can make a false statement just by telling you I'm a millionaire.
Unidentified Justice: --I see your point.
Mr. Chilivis: It would be a false statement.
Unidentified Justice: What were you charged, what were you charged... what was your client charged with?
Was he charge under one subsection or under one clause?
Mr. Chilivis: He was charged with overvaluing
"a security, that is a check."
But they underpin that and try to fit it into the false statement section by saying that's based on the fact that he misrepresented or caused to be misrepresented the value of the check because he... because he represented it to be in the face amount of the check.
Unidentified Justice: Which of course it--
Mr. Chilivis: It was honored.
The funds weren't there, but the bank paid it.
It didn't come back and it wasn't bounced.
But the lower court put the two counts together and said, this is check kiting and since Payne holds that check kiting comes under 1014 then that's what we've got here.
And that's a jurisdictional question.
Unidentified Justice: --Your point... can I just follow up?
Your point is that if their theory is right any time you deposit a check drawn on an account that doesn't have enough funds in it that you have then violated the statute, because you've then overvalued a security--
Mr. Chilivis: That's correct.
Unidentified Justice: --under their view?
Mr. Chilivis: That's what this charged.
That's all it charged.
You've got to combine the counts to make it charge anything else.
And I say it's a very dangerous precedent.
People do that every day.
Now, the state check laws cover that if it is an intent to defraud, and that's a horse of a different color.
I'm saving some time for rebuttal, may it please the Court.
Chief Justice Burger: Mr. Wilkins.
Mr. Wilkins: Mr. Chief Justice and may it please the Court:
This case presents a straightforward question of statutory construction.
That question is whether Petitioner's deceptive check-writing conduct falls within the reach of the federal statute that specifically prescribes the making of intentional misrepresentations for the purpose of influencing the credit decisions of a federally insured bank.
Unidentified Justice: Mr. Wilkins, before you get into that, is he not correct that the indictment is confined to the willfully overvaluing portion of the alternatives--
Mr. Wilkins: No, Your Honor.
Unidentified Justice: --so that the intentional false statement is not quoted in the indictment?
Mr. Wilkins: Counts two and three of the indictment charge Petitioner with knowingly an willfully overvaluing a security.
Unidentified Justice: Correct.
Mr. Wilkins: It also contains representation that he presented the checks and caused to be represented to said bank that said check was of a value equal to the face amount of the check, when in truth and fact this Defendant then well know that there were no sufficient funds.
Unidentified Justice: What are you reading from?
Mr. Wilkins: That's from page 3 of the Joint Appendix.
So the indictment clearly contains factual statements underlying an allegation of false statement.
Furthermore, Petitioner's contention at this state of the litigation that the indictment does not charge him with a false statement was not raised either before the trial court or the Fifth Circuit.
It is here being raised for the first time with this Court and is reviewable only under the plain error doctrine.
We... the Government contends that viewing the statute or reading the indictment, the clear language of the indictment meets the sufficiency requirement set forth by this Court.
Unidentified Justice: What if as a matter of a law a check were not security within the meaning of this statute?
It may have been property, but you didn't say overvaluing property.
You said a security.
Suppose as a matter of law a check was not a security.
And suppose count two was the only count in the indictment.
Mr. Wilkins: Exactly.
Unidentified Justice: Even if you prove he made a false statement, could you convict him under count two?
Mr. Wilkins: Exactly.
The jury in this case, Your Honor, was instructed that a check is a security within the meaning of Section 1014 as a matter of law The only question put to the jury under the instructions of the trial court was whether or not that check or that security was overvalued.
And as even Petitioner concedes in his reply brief, the question of overvaluation and false statement in the context of this case are the same.
The check is--
Unidentified Justice: But if the check were not a security within the meaning of the statute you would have to reverse, is that it?
Mr. Wilkins: --No--
Unidentified Justice: Because the jury... because the trial court misunderstood what a security was.
Mr. Wilkins: --No.
If... if a check is not a security--
Unidentified Justice: It's just property, rather than a security.
Mr. Wilkins: --If it's just property, for example; the only question that was put to the jury was, is this a false statement, is it an overvaluation.
The jury concluded that the check was a false statement, which is a sufficient ground for conviction under the statute.
So if this Court disagrees as a matter of law that a check is not a security--
Unidentified Justice: But you charged that it was a security and that it was overvalued.
Mr. Wilkins: --Exactly.
But even assuming that as a matter of law, as a legal theory, it's not a security, the only factual conclusion reached at the trial below was that it was overvalued.
Unidentified Justice: That's because the judge took away from the jury the question of whether it was a security or not, by charging them, under Justice White's hypothesis erroneously, that the check was a security.
Mr. Wilkins: But even if that is erroneous, the fact still remains that Petitioner was properly convicted--
Unidentified Justice: Of what?
Mr. Wilkins: --under the theory that it is a false statement.
Unidentified Justice: Of what?
Mr. Wilkins: Of making a false statement.
Unidentified Justice: About what?
Mr. Wilkins: The false statement is that he would have had money, that the checks were represented by funds and would have been paid in the normal course of collection, when in fact such was not the case.
Unidentified Justice: That's not what the indictment alleged the falsity of.
The falsity is that,
"when in truth in fact, as the Defendant well know, there were no sufficient funds in the other bank."
Mr. Wilkins: Exactly.
Unidentified Justice: That's all that's required.
Mr. Wilkins: Exactly.
Unidentified Justice: So that all that... in order to make out the offense under your theory, as I understand it, is you make a deposit with a check that you know does not have enough funds in the drawee bank at the time of the deposit.
Mr. Wilkins: For the purpose of influencing a bank upon a loan, advance or commitment, exactly.
Unidentified Justice: Well, for the purpose of getting a better bank account that you can draw against.
That's all you allege here.
In count two all you really do is allege that the balance in the account was therefore debited, I guess it would be, and they could therefore draw more.
You don't allege an actual drawing against that in count two.
You can't rely on count three.
Or you don't even say it was for the purpose of anything.
No, just that was the illegal purpose, that you knew the other bank was short of the funds.
Mr. Wilkins: Count two of the indictment clearly states that it was for the purpose of obtaining an advance of money.
The facts of this case demonstrate that each check was presented for the bank to obtain that advance, and Petitioner did use them to obtain that.
Unidentified Justice: But the purpose of obtaining the advance would have been achieved whether he ever in fact drew against the account, wouldn't it?
He's in a position where the balance has gone up, and therefore there are funds he can draw against.
Isn't that all you have to prove?
Do you think you had to prove that there was a drawing, a withdrawal, following the deposit?
Mr. Wilkins: No.
All we have to prove is that the check was deposited for the purpose of influencing the bank upon--
Unidentified Justice: It's future course of conduct.
Mr. Wilkins: --Exactly.
Unidentified Justice: Yes, but the falsity was what, an implied representation that there were funds to cover it--
Mr. Wilkins: Yes.
Unidentified Justice: --when in fact he knew that there were not?
Mr. Wilkins: Exactly.
Petitioner contends that a check can't be a false--
Unidentified Justice: That then would be, I gather, a conviction resting only on
"whoever knowingly makes any false statement or report."
Mr. Wilkins: --Exactly.
Unidentified Justice: And you never get to overvaluing.
Mr. Wilkins: Right.
It is unnecessary to get to the overvaluation of security to sustain Petitioner's conviction.
Petitioner contends that a check cannot be a false statement because it is simply a promise to pay a sum certain upon presentment and notice of dishonor.
Unidentified Justice: Well, but if your theory is right, why isn't any deposit of an insufficient funds check within the statute?
Mr. Wilkins: Because, Your Honor, this statute only reaches the deposit or making of knowingly false statements for the purpose of influencing a bank upon a loan, advance or commitment.
This construing Section 1014 to reach this conduct does not sweep all bad check prosecutions throughout the United States.
Bad check... state bad check laws will continue to apply to bad checks that are given to the neighborhood grocer.
Unidentified Justice: But as I listened to your exchange with Justice Stevens, it sounded like that was exactly what you were saying, and that any time somebody deposits a check knowing that there are insufficient funds to cover it this section has been violated.
Mr. Wilkins: If that check is deposited for the purpose of obtaining--
Unidentified Justice: Well, if it's deposited in a federally insured bank.
Mr. Wilkins: --Exactly.
Unidentified Justice: In a federally insured bank.
That's... knowing that there aren't funds to cover it.
Mr. Wilkins: Exactly.
Unidentified Justice: But it has to be a deposit... do we have many no-federally insured banks any more?
Mr. Wilkins: I am not aware.
I know that there are many state--
Unidentified Justice: This was an addition to the statute, wasn't it?
Mr. Wilkins: --Excuse me?
Unidentified Justice: Wasn't this an addition to the statute, the federally insured bank provision?
Mr. Wilkins: Yes.
The federally insured banks were added to the statute in 1970.
Unidentified Justice: Doesn't it take in almost all of the banks in the United States?
Mr. Wilkins: No, there are numerous state-chartered institutions that are not--
Unidentified Justice: Well, lots of state-chartered institutions are federally insured.
Mr. Wilkins: --Exactly.
Many of them are.
Petitioner contends that a check--
Unidentified Justice: Well, at least, if I may get through Justice O'Connor's question, this surely means that all you have to do is deposit a check in a federally insured bank knowing that there are insufficient funds to cover it and you've violated this statute.
Mr. Wilkins: --Knowing that there are insufficient funds to pay the check in the course of collection, if you intend to influence that bank to extend you credit.
Now, for example, in the circumstances of the Crown case--
Unidentified Justice: I deposit it and they credit it to my account, or I cash it.
In either instance, the requirement for the purpose of extending credit is satisfied, isn't it?
Mr. Wilkins: --No.
Take the example of the Crown case the Petitioner brought... mentioned this morning.
In that case the defendants presented checks to a bank that were drawn on a fictitious bank.
They were merely deposited in someone's account, there was a credit entry.
No one was allowed to withdraw any funds against that check.
There was no advance of credit.
And the court said there's no violation of 1014 here because, although there's a false statement, there was no advance of credit.
All there was was a bookkeeping entry.
Unidentified Justice: Well, some banks have that as a practice.
They don't... this check that you've deposited is just not subject to being drawn on until we collect it.
Mr. Wilkins: Exactly.
But in the facts of this case Petitioner deposited a check on May 9th, it was immediately credited to his account and to wipe out approximately $58,000 in overcharges.
Unidentified Justice: Did he know when he deposited it that he would have immediate credit?
Mr. Wilkins: The jury found on the facts of this case... the jury was instructed the Petitioner could not be convicted unless Defendant intended to write checks which he could not reasonably expect to cover and therefore defraud the bank.
And on the evidence presented or the evidence before the jury in this case demonstrated that Petitioner certainly was aware that the bank--
Unidentified Justice: At least you would say, then, that any time that somebody knows it's the custom of the bank to give you immediate credit and you deposit a check that you know has insufficient funds behind it, but that you know you'll get immediate credit that's useable, that then this statute is violated?
Mr. Wilkins: --Yes.
Unidentified Justice: I'm not sure I understand.
Does it depend on what the Defendant intends or does it depend upon what the bank does in its accounting practices, or both?
Mr. Wilkins: it depends... Your Honor, it would be a factual question.
It depends on what the Defendant intends.
Of course, the Defendant's knowledge of a bank's accounting practices would certainly be material in determining whether--
Unidentified Justice: Well, doesn't every defendant who deposits an insufficient funds check intend that he receive credit for it?
Mr. Wilkins: --No, Your Honor.
If there are facts showing that he intended to receive credit.
In this case, on May 8th federal and state bank examiners arrived to commence an audit.
There was a $58,000 overcharge in his account.
Mr. Williams, the Petitioner, was certainly and justifiably concerned to eradicate this overdraft status, and he deposited the check to, and he did in fact achieve--
Unidentified Justice: Can't the trier of fact reasonably infer from any deposit slip that the depositor intends to get credit?
Mr. Wilkins: --No, Your Honor, I think that it would... that the intention to influence a bank on an extension of credit would have to be a determination that would be made in light of all of the facts and evidence that was presented in an individual case.
Unidentified Justice: But can you conceive of anyone in their right mind giving a bank a check that's not sufficient funds to cover it and simply planning to wait and let the check go through the clearinghouse and be returned NSF?
Mr. Wilkins: No.
Unidentified Justice: That certainly isn't the intent of any rational person.
Mr. Wilkins: No.
Unidentified Justice: So isn't Justice O'Connor right when she says that anyone who presents an NSF check must be planning to get credit on it?
Mr. Wilkins: In some circumstances I can see that that would be the case.
Unidentified Justice: Well, what if a bank has a practice of not permitting withdrawals until the check has been collected.
Even though this was not known to the depositor and the depositor deposited it knowing that there were insufficient funds at the time, would he be guilty in that context?
Mr. Wilkins: No... he deposited the check intending to obtain an extension--
Unidentified Justice: He did, but unknown to him at the time the bank's practice was it would not permit any withdrawals against the check until it had been collected.
Mr. Wilkins: --That defendant I presume would have violated the statute because he would have presented a false statement with the intent to influence a bank upon an--
Unidentified Justice: Even though it was impossible that he--
Mr. Wilkins: --Even though it was impossible.
The statute is geared to protect federally insured banks against false statements that are designed to influence them.
Whether or not they're actually influenced is irrelevant.
Unidentified Justice: --Then it seems to me, as my colleagues down here have said, that this covers every bad check case.
Mr. Wilkins: No, Your Honor, it doesn't.
Unidentified Justice: As long as you know that you haven't got insufficient... that you do not have sufficient funds.
Mr. Wilkins: No, because it only--
Unidentified Justice: Well, the guy's a fool otherwise.
He must be.
He knows that the check is no good and he goes to the bank and presents it.
Why is he presenting it if he knows he's not going to get the money until the bank finds out that there's no money?
Mr. Wilkins: --This only extends to false statements that are made to federally insured banks for this purpose.
The vast majority of insufficient funds checks cases do not involve statements that are made to federally insured banks.
They involve statements that are made to grocers or--
Unidentified Justice: All right, all right.
But then you say it would cover all cases presented to a federally--
Mr. Wilkins: --To a federally insured bank, yes, Your Honor.
A check... the alternative ground for liability under Section 1014, as we have mentioned, is that a check constitutes overvalued land, property or security.
A check clearly qualifies as overvalued security within the meaning of Section 1014, because the term 18 of the United States Code includes any item that stands for some other thing of value.
Unidentified Justice: --Okay.
Now, you say that it's been generally defined that way throughout the United States... Title 18 of the United States Code.
Do you mean that definition covers the word 1014?
Mr. Wilkins: It is generally applicable, or that definition may be used to ascertain Congress' probable intent in using the word "security" in this statute.
Unidentified Justice: What section do you rely on?
Mr. Wilkins: For example, 8 U.S.C. 2311, the National Stolen Property Act, and the general--
Unidentified Justice: Well, that just defines it for purposes of that Act, doesn't it?
Mr. Wilkins: --Exactly.
It's for purposes of that Act.
Unidentified Justice: Well then why do you say it's applicable to this Act?
Mr. Wilkins: It's not directly applicable, Your Honor.
It's only applicable to show that as the term has been defined in other contexts, general criminal law contexts, it has been defined to include any item that stands for--
Unidentified Justice: Well, I would think the inference is quite the contrary, that if Congress has taken occasion to define it broadly and said for purposes of some other Act, the fact that it has not taken occasion to define it broadly here may cut against you.
Mr. Wilkins: --The broad term of the statute nevertheless, we contend, should be used consistently as the term 18 of the United States Code.
Unidentified Justice: Of course, this is just an alternative argument.
Mr. Wilkins: Exactly.
It's just an alternative argument and this Court need not agree that a check is a security to affirm Petitioner's conviction.
Petitioner spends considerable effort detailing in his brief the legislative history of Section 1014, but he has been unable to demonstrate a clearly expressed legislative intent to exclude his conduct from the reach of the statute.
Petitioner at argues from sparse legislative history--
Unidentified Justice: Well, do you feel it's the burden on a criminal defendant to show that he's not covered by the statute, or that it's the burden of the Government to show that he is covered by it?
Mr. Wilkins: --It is the burden of the Government, of course, Your Honor, to show that he is covered.
But there would be a presumption, I assume, the burden... in the face of clear statutory language... this Court has often stated that where you have clear language, in the absence of a clearly expressed legislative intent to the contrary, the statute will be given its clear plain meaning.
The fact that there is no express mention of Petitioner's conduct in the legislative debates of Section 1014 is of course irrelevant.
As this Court stated in Barr v. United States,
"If Congress has made a choice of language that fairly brings a given situation within a statute, it is unimportant that a particular application might not have been contemplated by the legislators."
The federalism concerns noted by Petitioner in his brief and in argument do not loom large in this case.
The Federal Government has a paramount and indeed a very important, a very strong interest in maintaining the viability and the assets of federally insured institutions.
The conclusion that Section 1014 extends to the presentation of all knowingly worthless checks that are presented for the purpose of influencing a credit decision of a federally insured bank--
Unidentified Justice: Not knowingly worthless, knowingly overvalued.
Mr. Wilkins: --Knowingly overvalued.
Unidentified Justice: It could be ten cents over, I suppose, and still... I mean, if the amount in the other account is only a couple of dollars below the amount of the check, you'd still have a violation.
Mr. Wilkins: If it is--
Unidentified Justice: It doesn't have to be worthless--
Mr. Wilkins: --Well, if it is done knowingly.
Unidentified Justice: --Right.
You have to know what your balance is.
Mr. Wilkins: Exactly.
You have to know, Your Honor, that the check will not be paid in the due course of collection.
Plus in the instructions in this case, the court specifically instructed the jury here that petitioner had to be engaged in conduct where he well knew that the checks would never be paid and he engaged in this solely for the purpose of obtaining time and credit.
The rule of lenity so often invoked by Petitioner applies only where there is a grievous ambiguity in the language or structure of the Act, that is entirely lacking on the facts of this case.
And the numerous hyper-technical objections to his indictment and the instructions of the trial court, as I've already mentioned, were raised for the first time before this Court and do not rise to the level of plain error requiring reversal of his conviction.
Petitioner's final argument is that his conviction must be reversed because a check kiting conviction requires the prosecution to prove an intent to defraud.
The short answer to this contention is that the Petitioner was not indicted for check kiting.
He was indicted for making an intentional false statement or willfully overvaluing a security for the purpose of influencing a federally insured bank upon a loan, advance or commitment.
Each count of his indictment clearly sets forth those facts, clearly sets forth those allegations, and is sufficient to sustain a statutory violation.
The term "check kiting" as used throughout this... the Government's brief and by Petitioner is simply descriptive of Petitioner's conduct.
The question here is not whether this conduct requires some specific intent to defraud in order to be culpable, but rather whether Petitioner's conduct that can be described as check kiting falls within the reach of a federal statute that prohibits intentional misrepresentations for the purpose of influencing the credit decisions of a federally insured bank.
As stated in Petition's reply brief, the overall question is whether the allegations of counts two and three are subject to prosecution under Section 1014, regardless of how they are labeled.
No matter how one labels the conduct of Petitioner, it clearly comes within the reach of Section 1014 and states a violation of that statute.
Petitioner's conviction should be affirmed.
Chief Justice Burger: Do you have anything further?
Mr. Chilivis: Yes, sir.
Mr. Chief Justice and may it please the Court:
If I can make just two quick points.
One of them has to do with what this indictment is all about.
They say we didn't raise the issue of false statement until we got up here.
The statute is couched in the alternative.
It says either a false statement or overvaluing security.
Now, they didn't... if you look at the indictment, it says that he overvalued security in that he presented the check and represented it was of a value in its face amount.
They did not make a specific charge of making a false statement.
They used that to underpin the charge of overvaluing a security.
Unidentified Justice: You're saying you didn't know you were facing a charge of a false statement?
Mr. Chilivis: No, sir, this is the first time we realized this, when we got cert. to this Court.
We used it as an argument because it underpins the overvaluing of a security.
And let me mention one other thing.
This case was tried on check kiting.
That's the unfortunate thing about this case and that's why if this Court determines that in this case the court was in error and it should be reversed, it should reverse count one, too.
The judge charged the jury that the Defendant was being charged with check kiting.
The two witnesses... the FBI agent testified it was check kiting, and a back examiner testified it was check kiting.
Unidentified Justice: Well, there is no statute anywhere, is there, that describes it in terms of check kiting?
Mr. Chilivis: That's correct.
Unidentified Justice: We don't have statutes drafted that way.
Mr. Chilivis: That's correct.
And I really don't know what check kiting is.
Black's gives three definitions and Words and Phrases gives two other that are broader.
And let me tell you just one other minute about it.
Opposing counsel has stated that this wasn't check kiting.
In the Joint Appendix, we show the Government charges that Mr. Williams was involved in check kiting, and that's a direct quote.
Let me give one other example about what Justice O'Connor mentioned.
Let's assume that a person has two banks that they operate out of, that on the way to bank A to deposit a check they stop at bank B and deposit a check on bank A.
They have the check in their pocket to deposit in bank A.
They then go to bank A and deposit that check, but until they deposited that bank A did not have sufficient funds to cover the check at bank B.
That is a violation under this indictment as charged in this case of the law, and that's all it takes... no intent to defraud, as long as that bank credits their account with that check instead of waiting for collection.
Unidentified Justice: Or even if they don't.
Mr. Chilivis: Even if they don't do it.
That's a... now, opposing counsel said it was a bank's decision to use overdrafts to wipe out that, and that's true, it was the bank's decision.
My time's up.
I wanted to make one other point.
Chief Justice Burger: Thank you, gentlemen.
Mr. Chilivis: Thank you, Your Honors.
Chief Justice Burger: This case is submitted.


text:
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subset: commoncrawl


text:
If you didn't know Alan Kelly and
you put this CD on, you'd be greted by a first track that is an international,
jazzy, funky number and sounds a bit French. However, this young man is
also a genius of trad Irish. Track 2 is brilliantly 'session' stuff, composed
by Alan himself and full of Irish fiddle, bodhran and well, yes, a mean
bit of accordion tossed in by 'yer man himself'.
BELFAST TELEGRAPH Live review Alan Kelly and Friends, Belfast Festival at Queens 9/11/01
"Piano accordionist Alan Kelly brought three of his friends to the
Festival Folk Club last night, and ended up making a lot more. The four
musicians from four different counties gave the happy Friday night audience
a session to remember.
Alan Kelly's 1996 debut, Out of the Blue, was aptly titled. The piano accordion suddenly burst into life with Kelly's innovative playing. He skillfully created an album which was brimming with appeal, emotion, gusto and color and a flowing, loose style.
Mosaic is a change, not so much in material as in interpretation. These 11 tracks are from a variety of sources, mainly traditional Irish tunes, with some from Scotland, and a handful of others composed by Kelly, album producer Arty McGlynn, and Liz Carroll. The difference is, creative juices are allowed to run free when it comes to arrangements.
"Eva's Reel," the opening track, is a rolling accordion-led reel, with a guitar accompaniment highlighting the melody and a bass punctuating the rhythm. What really sets the tune apart is the fruity Hammond organ's chording, along with the trumpet and sax which sweep around the melody, and the light, unobtrusive drumming.
McGlynn really comes into his own on the following slip jigs with his delightful airy accompaniment on the first tune and real push on the second. Similarly, the keyboards provide a strong majestic bed to begin with, but take on more of an aggressive nature at the change. The turnover in tunes is enhanced by the introduction of fiddle playing melody along with accordion. The backing throbs with unexpected chord sequences and the added sound of trumpet.
New elements are introduced on each track. For example, "Salamanca Samba," as the title suggests, brings in South American themes. Kelly sits back at one point and lets sax take a solo, but for the most part, he is there leading the ensemble through this Irish-Brazilian hybrid written by McGlynn. Guitar, bass and percussion drive the melody while fiddle, trumpet and sax accent the chorus lines.
Throughout the album, Kelly explores the possibilities different styles offer and succeeds where many have fallen in the past. A charming strathspey, full fledged Irish reels and salsa are all deftly handled with the understanding of someone who knows and loves the music.
And accompanying him throughout is McGlynn along with a dozen others playing instruments ranging from flute and fiddle to guitar and bass to trumpet and saxophone as well as piano and percussion. And with that instrumentation, the possibilities are endless. Kelly is aware of that and takes full advantage.
Crossover albums do not always work, but this one does possibly because Kelly never loses touch with his roots. For each swing or slide he introduces from another genre, there is something from his own background to give foundation. The sweeping new age keyboards on the air "Leaving Haines" are perfectly offset by the orthodox approach of the accordion. The exotic rhythm of the bongos on "Micho Russell's Reel" blend with straight traditional combination of accordion and flute. The jazz-styled accompaniment of "Hanley's Tweed" only emphasizes Kelly's Irishness.
And along with Kelly, much credit must go to Arty McGlynn, whose playing is impeccable, compositions appealing and production spot on. He's the perfect foil for Kelly. This album shows the great understanding and sympathy the two have for each other, and promises much for future collaborations.
Perhaps the highlight comes at the end of the album with Flowers of the Forest, a Finnish tune well assimilated into the Irish repertoire. I've not heard it done this way before. And, like with the album as a whole, the only thing to do as it ends is press the repeat button. -
Jamie O'Brien - rootsworld.com
Currently Trad's hottest ticket, Alan Kelly's live show has been hailed as "a brilliantly talented, effortless and exuberant performance" by The Irish Times, while New York's Irish Voice has called the man himself "in league with the best piano accordionists in the world". Such lavish praise is not misplaced, certainly on the evidence of his second album, Mosaic, where he displays a dexterity and an understanding of the music as well as his instrument. It is without doubt one of the best Irish releases of recent times.
Produced by Arty McGlynn, the album reveals a seemingly playful, experimental approach to Irish music. Indeed, the two McGlynn compositions on the record indicate that here is a fruitful partnership in the making. Most notably of these, Salamanca Samba is truly a joy. With the South American rhythms and Mike Nolan's trumpet, this up-tempo number really gets the feet tappin'. Recent years have seen so many explorations in Irish music, mixing and matching with styles and genres from all over, sometimes with inconclusive results. The South American material really works though, and you just can't help imagining the band wearing moustaches, flowery shirts and sombreros.
The album starts off, however, in a fanfare of cinematic jazz, with Eva's Reel. Written by Kelly himself, it shows not just what a good writer he is, but the breadth of his musical imagination. God knows what he could have done with a Miles Davis or a Charlie 'Bird' Parker. With Richie Buckley on saxophone and a luscious Hammond organ in the background it is sweeping, meandering uplifting music and a great start to any album.
Arty McGlynn's guitar playing throughout the record is, as is to be expected, top class. Nowhere more so, that at the beginning of the Kelly-penned The Wing Flapper, where the lazily-strummed chords set the tone for a nice, laidback slip jig.
Despite his experiments with salsa and jazz, most of the album is made
up of reels, jigs and hornpipes. His playing (and indeed that of his band)
is perfect throughout, drawing the tunes out of the box like a sorcerer,
because some of the playing really is magical.
Certainly one of this writer's favourites is the Collier's/Paddy Taylor's
Reel. Two reels played with freshness and passion, McGlynn's clean (without
being glossy) production teases the best out of the meandering accordion,
punctuated throughout with jabs of Liam Bradley's snare.
On just his second album, Kelly shows himself to be a force to be reckoned
with. A brave, talented artist, it will be really interesting to see where
he goes from here. The jazz furrow is one he will continue to successfully,
I would say, but it is difficult to imagine him not reaching out to other
genres and branding them with his own stamp. He seems to be a maverick
even by today's standards.
Sean Walsh - Arts West (Apr 2001)
Alan Kelly is an Irish box-player, but unusually he plays the piano box. This is definitely his second album, and confirms him as the most talented and innovative Irish piano accordionist around. Alan Kelly rocks - you can tell that straight away, mainly from the sunglasses - but his rocking almost always enhances the tradition. He's supported on this recording by fellow rockers Arty McGlynn, Nollaig Casey, Rod McVey, Sean Smith and others. At 39 minutes Mosaic may be lacking in quantity, but there's more than enough quality to make up for that.
The eleven tracks here are mainly tradition Irish music, seasoned with salsa, samba, a Scottish stratspey and several contemporary compositions. From the opening notes of "Eva's Reel" the accordion wizardry is awesome, as hardly a finger goes astray in a stunning display of skill. If Alan Kelly's marks for technical merit are high those for artistic impression are even higher: the pairing of his own jaunty "Grier's Slip Jig" with a modal version of "The Kid on the Mountain" is an instant success, and Arty McGlynn's Balkan samba which follows is one of the best new tunes I've heard.
Track 4 is a bit of a low point. Irish Musicians never quiet seem to get enough snap into a stratspey, and "The Glendaruel Highlanders" suffers slightly from slushy synthesiser effects. However, things soon pick up with a great Kelly slow air and a fistful of fine traditional dance tunes. A slow march by McGlynn provides a change of pace, and then another handful of reels are given the Kelly beauty treatment before the album climaxes in a truly miraculous transformation of the Finnish waltz "Forest Flowers", eat your hearts out Cathal, Aly and Phil.
It's nice to hear a new instrumental release from Tara Music, who have rather quiet of late. It's even nicer to hear a release of such high quality and originality. Nicest of all, though, is hearing traditional music handled with such flair and taste. Alan Kelly's playing brings out the magic in the tunes without compromising their identity. Mosaic is an album for everyone who enjoys good music. It's pleasant in the background, perfect in the foreground, and dynamic enough for the underground. Get one Now.
Alex Monaghan - Living Tradition
Alan Kelly is the man who made the piano accordion hip in Ireland again. Roscommon born Kelly has the savvy and the musical expertise to paint a grand canvas and achieve the necessary affect. His debut album Out of the Blue was a cracker - lively, intuitive and brimful of good tunes played with skill and energy. Now comes the bigger label follow-up on John Cook's Tara imprint. Wisely Alan Kelly has altered the same plan to go for a wider, more expansive sound hitting everything in sight from traditional music to Latin and samba styles and a bit of Glen Milleresque big band pyrotechnics along the way.
The assembled band with which he has already gigged with in Ireland - include Arty McGlynn, Nollaig Casey, James Blennerhassett, Sean Smyth, Richie Buckley and that's just for starters. But can Alan Kelly carry the load and more importantly pull off an album as broad in depth and wide of scope as Mosaic is? Happily the answer is in the affirmative. Eva's Reel opens with Mike Westbrook-like scoring and French musette inflections before exploding over a back drop of Rod McVey's Hammond and Liam Bradley's jazzy drumming. The Wing Flapper has Nollaig Casey's fiddle providing a melodic foil, and threatening doom-laden keyboards. The salsa element is prominent on the continental sounding Salamanca Samba, composed by Arty McGlynn, with its mix of Brazilian rhythms allowing saxophonist Richie Buckley to let rip over a carnival backing. Also salsa flavored, Flowers of the Forest allows for more pronounced experimental strains which work conclusively. Kelly's accordion makes light work of Earl Grey's cadences and Leaving Haines shows his power with slow airs. Wisely on this occasion Kelly holds back on the throttle, allowing the tune to weave its magic through a less-is-more approach.
Arty McGlynn's production is spot on throughout, always seeking the melodic cadences and giving them ample space to shine. Mosaic delivers the goods and promises maximum satisfaction, even for listeners with an aversion to piano accordions. Kelly's next moves will be watched with interest.
John O'Regan - FOLK ROOTS
Paddy's Day - Lens style with the Alan Kelly Band Deep in the industrial heartland of Northern France, a poster announces the forthcoming St. Patrick's Day concert of Alan Kelly and friends. Local radio station Radio Pas-de-Calais assures the 'burghers' of Lens that this is a 'spectacle a ne pas manquer' (not to be missed), and by the end of the night, the Lensois have discovered their new heroes of Irish traditional music.
Lens is a town of 'Germinal' character, equally renowned for its footballing as for its musical prowess, and from the first note, the assembled crowd of 700, were out of their seats and jigging and reeling with an enthusiasm, which in the words of accordion maestro Alan Kelly, 'reminded me most of the Festival Club nights at the annual Ennis Trad festival held each November', high praise indeed for this French town.
The genesis of this Leonsois 'en masse' revelry could be explained with one glance at the array of on-stage talent. Alan Kelly is regularly feted as 'one of today's finest exponents of the piano accordion' and tonight's accolades of 'magnifique' and 'formidable' is immense praise indeed from people steeped in the accordeon tradition.
Alan's rich armory of tunes, his infectious zeal for the accordion and his on-stage mastery of the crowd, allied with his wonderfully articulate playing was richly supported by the spirited backing of Frank Kilkelly on guitar and Damian Evans on double bass. Frank's wonderfully agile guitar expertly driving the 'ensemble' into the first Red Haired Lass set of reels and Damian's double bass melodically navigating a path in the musical expanse.
The participation of special guests Mike McGoldrick and Dezi Donnelley on this short French tour was a special treat, fondly treasured by Festival Director, Didier Riez, who has been organising this Celtique gathering over the past 10 years. From the firmament of Irish music, 'nous avons le plaisir de vous presenter ' and what a musical pleasure it turned out to be. From the first memorable sortie into the slip jigs Gusty's Frolics, Alan and friends convincingly engaged the consenting 'publique' and it was love at first 'slide'. The people of the Lens love to dance and dance they did; on the tables, in the balconies and alarmingly on the stage, at one point a reveller being so overcome with the sheer brilliance and 'tempo' of The Berehaven Lassies and Matt the Thresher that he presented Alan with a bunch of white lillies.
The performance encompassed a wonderfully eclectic and energetic mix of traditional arrangements and self-penned tunes from Alan Kelly & Mike McGoldrick. From the exquisitely rhythmic James Brown March to the hauntingly beautiful The Noone Lassies, the virtuosity of the musicians and in particular McGoldrick's low whistle and flute, transported the audience collectively to that Celtique twilight which is the stuff of Gallic dreams. Dezi Donnelly's versatility and spirit of adventure on the fiddle was awe-inspiring throughout the concert and the beautifully executed Hot Club influences in the Diarmuid Moynihan-penned Paper Bird underlines the rich talent of the often 'Stocktons Winger'.
As the concert moved to its soaring apex, a form of Celtique conga was brought to life on the dance floor and within minutes the 'salle' had become a rhythmically flowing mass of people, spellbound by the on-stage musical sorcerers. Clifden-based Duchas, who had opened the concert, joined the on-stage constellation for a Grande finale, which culminated in the inevitable eruption of applause.
A footnote to this amazing concert, further underscoring its achievement was the fact that the Alan Kelly band had returned from the Dallas Irish festival, only days previously and had linked up with Mike & Dezi, literally hours before the concert. Alan Kelly explains, "when you're working with musicians of the calibre of Mike and Dezi, they just dovetail with the music, they meet you half way and it just worked perfectly". This was the first performance of the Alan Kelly band in France and with several summer festival appearances in the offing, it promises to be the first of many. A spectacular performance from a group of musicians who play in the premier league of their respective instruments. The Lensois people have seen a performance to savour and as an audience 'dansant', they have ably played their part in a musical event 'de la plus haute qualité' Alan Kelly & distinguished guests .. le verdict du jury Lensois..Le Prix D'honneur
Mike Walsh - Irish Music Magazine
ALAN KELLY - Mosaic (Tara Records TARA CD 4010) "Not since the opening bars on the first Sharon Shannon album did I appreciate just how much joy and enthusiasm a performer could wring from a squeezebox. Now you can add another. In Alan Kelly we have Sharon's equivalent on that most unwieldy of beasts, the piano accordion. From the outset with its trumpet led chordal backing, you can tell this is going to be one hell of an album. Mind you, in the innovative hands of producer Arty McGlynn what else would you expect? Bringing together a plethora of Ireland's talented musicians for this session must have been the ultimate rush for Mr. Kelly. Each track has its own distinctive 'feel' giving the listener what he really wants, an album full of surprises. Take McGlynn's own composition 'Salamanca Samba' which as the sleeve notes state sounds like it were made for the accordion. Coupled with Richie Buckley's sax, and again, the use of those trumpets the good-time groove would have everyone bopping at a Mardi Gras. On another track, 'Leaving Haines/Johnny McGreevy's Jig' the setup rhythm on guitar leaves you feeling that the musicians are about to go into a reel but from the title you should realise nothing is what it seems. Kelly may be a musician's musician but I'm glad to report that he allows the warmth of his playing to encompass the most hardened of souls."
"An idle thought crossed the mind lately: wonder what Arty McGlynn is up to? Here's the answer, a great collaboration with Alan Kelly. It goes borrowing on the accordion flavours of other countries and traditions, and Alan, with his awesomely neat triplets and limpid tone from the Saltarelle is in great form. The key to the success is that each style is treated with respect, on its own terms, and a real sense of enjoyment comes across, plus the confidence born of being a truly fine player. Thus one track is called the Salamanca samba: oops said I, is this a big reel reborn? Not at all: it's a great sprightly tune from Arty on which Alan mixes it with Richie Buckley on sax. Other guests include Nollaig Casey and Jimmy Blennerhasset. The very next track is a brace of strathspeys, played with an equal understanding and love of the tune. It may be an eclectic mix, but there's nothing forced or artificial about it, and there are fair few surprises. For instance, the Flowers of the Forest has nothing to do with Flodden, 1513 and all that: it's a Finnish waltz given salsa treatment. It works. It's amazing how some tunes come into prominence: Alan has the Colliers, and the Pride of Rathmore/The Girls of Farranfore. He's not the only one with these on display but it's a great version he has. There are 13 musicians in all, including Alan's brother, John, on flute for three reels: it's the sort of playing that when you encounter it at a fleadh, you know you can settle in for while, 'cos you've hit pay-dirt. There's also a lovely lazy hornpipe, The Plane of the Plank, composed by Liz Carroll: she should be very happy with this recording. Maybe at 39 minutes, it's a short experience, but there isn't a weak track on it. It's an excellently produced showcase of a very talented and genuine musician."
John Brophy IRISH MUSIC MAGAZINE (OCTOBER 2000)
Master of the stomach Steinway....
Piano accordions can be scary things. Alan Kelly's is scarier than most. Scarily, fantastically good!!
For many the piano accordion is an acquired taste, but Alan Kelly can convert even the most wary listener into a rabid, slavering maniac for the piano accordion. Trust me. Alan doesn't just play the accordion, he celebrates it in way that draws you into the passion he puts into the music he plays. And besides, he has a great, wacky way of turning a waltz into a salsa, or adding sax and trumpets in reels. But don't underestimate him. He may have some fun with the tunes, but his traditional ties are solid gold.
Roscommon born Kelly released his first CD "Out of the Blue" to rave reviews and this follow-up, "Mosaic", is further evidence of the enormous talent this man has. In fact, the first track on this CD, "Eva's Reel", tickled me so much that I couldn't get past it to listen to the rest of the tunes. With its skiffle beat and whimsical light-hearted sound, all I could do was hit the "repeat" button on the CD player while the grin on my face got wider and wider. Composed by Kelly, it is hoped that he will put more of his compositional skills to use on his next release, cause this one's a beaut!
A mosaic is a picture or pattern made up of small, colorful pieces of tiles and Kelly's CD is of a similar nature. Fearless in his approach to the music, but never sloppy, the "Salamanca Salsa", penned by guitar guru Arty McGlynn smokes with Kelly on accordion. In complete contrast on the next track,Alan slips into "Earl Grey", a delightful strathspey he got from Capercaillie's Donald Shaw.
While Kelly might have some fun with tunes like "Salamanca Salsa, there's" no messing about when he goes into the reel sets like "Pride of Rathmore/Micho Russel's" and "The Colliers/Paddy Taylor's Reel". Kelly's confident bold playing comes from growing up in the rich Roscommon musical landscape--known throughout Ireland for the flute players--and some darn good piano accordion players, for Kelly learned the accordion from his dad, who played in Ceili bands. When Alan's brother John, joins in on flute for "Jim Donoghue's Reel/Martin Wynne's No. 3/Palmer's Gate", it simply transports you to another sphere. I fell in love with Irish music because of playing like this.....it is mighty.
Surrounded by great musicians in their own right on this CD such as Sean Smyth (fiddle), Nollaig Casey (fiddle), Arty McGlynn (guitar), James Blennerhasset (bass), Liam Bradley (drums), Richie Buckley (saxophone), Rod McVey (Hammond Organ, piano) and others, this is a palette splashed with many colors--all solid, vibrant and immensely enjoyable.
The final track is perhaps the most fun of the lot. A popular Finnish waltz that somehow headed south and became a salsa. It is gas altogether, and I defy anyone to stop dancing when you hear it. If you can't dance to this one, check your pulse, 'cause you've gotta be dead.
Indulge yourself in one of the most enjoyable listening experiences this year--get on the Alan Kelly bandwagon. The line starts here..
Cindy Reich - Celtic Connections Magazine
ALAN KELLY - MOSAIC (TARA) It's been the revival to beat all revivals. After the born-again triumphs of the button accordion, the nativity of the piano accordion might have almost seemed inevitable. But its rehabilitation from instrument fit only for demonic infernos to acceptable session player, hasn't had quiet the sex appeal or PR campaign that its buttoned cousin had before it. Still, Alan Kelly isn't a musician to be boxed in by either image or imagination.
Mosaic is precisely what its moniker suggests: a delicate arrangement of precisely positioned pieces, each one catching the light through a prism of its own design. Kelly's music boldly goes where few have ventured before. This is box playing with balls, stepping way past frontiers long thought the corral and backbone of the piano accordion sound. He may not yet be gracing the cover of the Rolling Stone, but Mosaic should go a long way in ensuring Kelly's music is heard long past the confines of the pub session or fleadh.
There's a whole rake of moods permeating this collection. From the lonesome solo run on the slow air of 'Leaving Haines' to the pelvic swivels of 'Salamanca Samba' and the double-take of 'The Pride of Rathmore/Micho Russell's Reel' (and a knowing nod in the direction of 'The Girls of Farranfore' in its midst), Kelly plumbs depths and soars to heights that are usually only reached with the help of a serious drug cabinet.
Bearing the hallmark production style of Arty McGlynn (who also penned 'Salamanca Samba'), and venturing into soul territory worthy of Curtis Mayfield at his peak ('Johnny McGreevy's Jig'), courtesy of Rod McVey's hammond organ, this is not a collection for those with a puritanical ear. This is ecumenism at its come-all-ye best.
Alan Kelly's kept his powder dry for far too long. His debut,
Out Of The Blue was a confident whistle blower of an album, heralding
the luminous talent that's matured magnificently on Mosaic. And with a
gathering of musicians of such impeccable character as Nollaig Casey,
James Blennerhasset, Liam Bradley and Jimmy Higgins - alongside the genius
interloper, Richie Buckley - Kelly can do no wrong. Long may his Mosaic
glisten in the sun.
Siobhán Long 3/10/2000
Tønder 2002: Old and new Celtic and Danish music: Friday evening approached and the usual Tønder dilemma, which concerts to go to?! I love the atmosphere inside the big tents so I plumped for The Alan Kelly Mosaic Band in Tent 1 to start with. I have been an admirer of Alan´s since his work in the Michael Mc Goldrick big band and his debut CD Out of the Blue from 1997. John Kelly, Alan`s brother, on flute led into the first three reels and set the tone for the rest of the gig. Arrangements varied from the the experimental to the traditional and included some of the tunes he and his brother have just released on a CD called "Fourmilehouse".This band has so many star performers and features the very jazzy playing of Richie Buckly on sax and Daniel Healy on trumpet, not to mention that former showband guitar hero Arty Mc Glynn. Arty is one of the all time originals of Irish music from the last twenty years and one baroque piece of his sticks in the mind.When Alan and the seven members of his band finished the crowd was buzzing as the stage crew rushed around doing their usual rapid changeover.
Eugene Graham - FolkWorld


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23:29 05-07-2015
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