Appendix — Jakob v. United States

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APPENDIX A

7 Constitutional Provisions. and Statutes Involved 8

rae Constitution, Amendment 902 |

No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indietment

of a Grand. Jury, except in cases arising in the land or naval

forces, or in the Militia, when i in actual service in time of

War or public danger; nor shall any ‘person be subject for

the same offence to be twice put i in jeopardy of life or limb;

nor shall be compelled in any criminal case to be witness

against hi deprived of life, liberty, or roperty,

law; nor shall private property be.

takén for * use, without just compensation.

18 US.C. § 371

If two or more persons conspire either to commit any

offense against the United States, or to defraud the United

States, or any agency thereof in any manner or for any

purpose, and one or more of such persons do any act to

effect the object of the conspiracy, each shall be fined not

more than $10,000 or e no than five years}

or both. . : md

If, however, the offense, the commission of which § is i thi |

bject of the conspiracy, is a misdemeanor only, the punish-

ent for such conspiracy shall not exceed the maximum

ishment provided for sugh misdemeanor. June 25, 1948,

o. 645, 62 Stat. 701. . ö

Appendix 4 Constitutional Provisions and

Statutes Involved

18 U.S.C. § 2314 co

| “TRANSPORTATION OF STOLEN Goons, Securities, Moneys,

| Fravputeyt Starz Tax Sraurs, on ARTICLES Use IN

CouUNTERFEITING

* Whoever transports in interitate or foreign commerce

any goods, wares, merchandise, securities or money, of the

value of $5,000 or more, -knowing the. same to have been

‘stolen, converted or taken by fraud; or

Whoever, having devised or intending +o devise any

scheme or artifice to defraud, or for obtaining money or

property by means of false or fraudulent pretenses, repre-

* sentations, or promises, transports or causes to be trans-

ported, or-induces any person to travel in, or to be trans-

ported in interstate commerce in the execution or conceal- |

ment of a scheme or artifice to defraud that person or money

or property having a value of $5,000 ér more; or |

_Whoever, with unlawful or fraudulent intent, transports ie

in interstate or foreign commerce any falsely made, forged,

altered, or counterfeited securities or tax stamps, knowing

the. ane to have been falsely made, torent, altered, or

counterfeited ; —

_ Whoever, with unlawful or - fraudulent intent, transports .

in interstate or foreign commerce, any tool, implement, —

thing used or fitted to be used in falsely making, forging,

altering, or counterfeiting any. security, or tax. stamps, or

any part thereof—

Shall be fined not more. than $10, 000 or imprisoned ‘et

more than ten years, or both. .

~~ eThis section shall not apply to any falsely made, forged,

altered, counterfeited or spurious representation of an

—

Appendiæ A—Constitutional Provisions’ and ?

Statutes Involved

obligation or other security of the United nes or of an

obligation, bond, certificate, security, treasury. note, bill,

promise to pay or bank note issued by any foreign govern-

ment” or by a bank or corporation of any foreign country.

As amended July 9 9, 1956, c. 519, 70 Stat. 507; Oct. 4, 1961,

Pub. L. 8771, § 2, 75 Stat. 802.

18 U.S.C. 9 231i

- SALE oR. aper 0 or STOLEN Goops, Skcunrrms, Monere, OR -

. FRAUDULENT Srarn Tax Stamps :

Whoever receives, conceals, stores, barters, sells, or dis-

poses of any goods, wares, or, — securities, or

money of the value of $5,000 or more, or pledges or accepts

as security for a loan any goods, wares, or merchandise, or

securities, of the value of $500 or more, moving as, or which

are a part of, or which constitute interstate or foreign com-

merce, knowing the same to have been stolen, unlawfully

converted, or taken; or *

Whoever receives, conceals, stores, sites sells, or dis-

poses of any falsely made, forged, altered, or counterfeited

securities or tax stamps, or pledges or accepts as security

for a loan any falsely made, forged, altered, or counterfeited

securities or tax stamps, moving as, or which are a part |

of, or which constitute interstate or foreign commerce,

knowing the same to have been 80 falsely made, forged,

_ altered, or counterfeited ; or

. Whoever. receives in interstate or foreign commerce; ¢ or

. conceals, stores; barters, sells, or disposes of, any tool,

implement, or thing used or intended to be used i in falsely

making, forging, altering, or F any security or

\ &

— aii Provisions “it

_ Statutes ——

Ore —— tet hes —— men iy

tax en or any part thereof, moving as, or which i is a

part of, or which constitutes interstate or foreign commerce,”

. knowing that tlie same is fitted to be used, or has been used,

in falsely: making, forging, altering, or counterfeiting any

security or tax stamp, or any part thereof .

Shall be fined not more than $10,000 or imprisoned not

more tham ten years, orboth -

This section shall not apply to any falsely made, forged,

altered, counterfeited, or spurious representation of an

obligation or other security of the United States or of an

obligation, bond, certificate, security, treasury note, bill,

promise to pay, or bank note, issued by any foreign govern-

ment or by a bank or corporation of any foreign country.

"As amended Oct. 4, 1961, Pub. L. 87-371, § 3, 75 Stat. 802.

18 U. Ac. 8 3500

7 FOR Propuction: OF STaTEMENTS AND ‘Bevonrs OF

Wire

iA a) Ing y criminal 8 brought by the United

States, nõ ment or report in the possession of the

‘ United ‘States which was made by a Government witness ~

or prospective Government ¥ witness (other than the defend- |

ant). to an agent of the Government shall be the subject of

subpena, discovery, or inspection until said witness has

testified on direct examination in the trial of the case.

(b). After a witness called by the United States has testi!

fed on direct examination, the court shall, on motion of the

defendant, order the United States to produce any state-

ment K hereinafter defined) of the witness i in the Posses-

Appendix A—Constitutional Provisions. and

Statutes Involved

ser sion Or the United: States Which relates to the subject matter

as to which the witness has testified. If,the entire contents

of any such statement relate to the subject matter of the

testimony of the witness, the court shall order it to be

delivered directly to the defendant; for his examination, and

use. i 3

(e) If the United - States a that any statement

ordered to be produced under this section contains matter

which does not relate to the subject matter of the testimony - |

— of the witness, the court shall order the United States to

deliver such statement for the inspection of the court in

camera. Upon such delivery the court. shall excise the

portions of such statement which do not relate to the sub-

ject matter of the testimony of the witness. With such ma-

terial excised, the court shall then direct delivery of such

statement to the defendant for his use. If, pursuant to such

procedure, any portion, of such statement is withheld from

the defendant and the defendant objects to such withhold-

ing, and the trial i is continued to an adjudication of the guilt

of the defendant, the entire text of such statement shall be

preserved by the United States and, in the event the defend-

ant appeals, shall be made available to the appellate court for

the purpose of determining the correctness of the ruling

of the trial judge. Whenever any. statement is delivered to

_ @ defendant pursuant to this section, the court in its dis-

cretion, upon application of said defendant, may recess pro-

ceedings i in the trial for such time as it may determine to

. ‘be reasonably . required for the examination of such state-

ment by said defendant and his preparation for its use in

the trial. r f | 3 0 os

A-6

Appendix Constitutional Provisions and

Statutes Involved

(d) If the United States Gets not to ne with an

order of the court under paragraph (b) or (e) hereof to

deliver to thé defendant any such statement, or such portion

thereof as the court’ may direct, the court shall strike from

the record the testimony of the witness, and the trial shall

proceed unless the court in its discretion shall determine

that the interests of justice require that a mistrial be de-

clared. | . 6 oir *

(e) The term 8 as used in subsections (b),

: (e), and (d) of this section i in relation to any witness called

. by the United States, means— |

(i) a written statement: made by said witness and signed

or otherwise adopted or approved by ‘him; or

2) a stenographiec, mechanieal, electrical, or other record-

5 ing, or a transcription thereof, which is a substantially ver-

- batim recital of an oral statement made by said witness

to an agent of the Government and recorded contemporane-

ously with the making of such oral statement. Added Pub.

L. 85-269, Sept. 2, 1957, 71 Stat. 595.

+.B

e RE

APPENDIX B

Opinion of United States Court cher.

„ UNITED STATES couRT. OF APPEALS |

J Fion qu Seconp Omôurr

32 &

N o. 441 September Term, 1965.

n June 20, 1966 Decided September 12, 1068)

a a Docket No. 30345

1 \

4 *

Unitep States 0 AMERIOA, a

Agnes

Before:

WarRNAN, Moore and Kavrman

ating the National

Stolen Property Act, 18 U. S. C. 62314, and conspiracy. to

violate 18 U. 8. C. 982314, 2315 (18 U. S. C. 8371), after

a trial before Wyatt, J., and a jury in the United States

District Court for the Southern Pistriet os New „

Affirmed. * : | f 8

5 5 Epwanp 8. n New York: N. V. for

5 = appellagt Robert Edwards.

Appendia B—Opinion of United States Court of Appeals

START A. JAcksox, New York, N. V. (Royall,

Koegel & Rogers, Norman Ostrow, Guy COC. s

Qninlan, John S. Hibschman and Rhys 4

Beil on ‘the brief), for appellant Max

—

Jakob. 4 , .

GRRE 3 New Yor N. v. (Jaffe 4

Feldman, Anne Gr 8 Feldman, on the

brief), fo: appella t Jo n . Lombardozzi.

Hu NHL, Jz, New “York, N. L. —

ony F. Mara, an the brief), for appel-

Ailton Parness.

„ pean 0. bann ne United States

Attorney (Robert M. Morgenthau, United

States Attorney for the Southern sige

, 25 New York, Michael W. Mitchell, Jof E

Sprizzo, on United States Attor-

neys, on the b for *

”

Kavyuax, Circuit Judge:

, Roserr Epwarps,’ Max J akob, John erden! and

Milton Parness appeal from their convictions for violating

the National Stolen Property Act, 18 U. 15 C. 92515 and

a * On May 19, 1966, — .

file his brief and dix in accordance with the schedule previ-

diisly set down by this court. On June 20, 1966, Edwards moved

to vacate the Genial, citing unusual circumstances which pre-

vented his attorney from devoting his time to this case. Because

of these circumstances, we vacated the ‘dismissal of Edwards’ ap-

2 accepted a ‘belatedly filed brief (to which the government

responded), and. considered Edwards 2 72 on. the merits.

0 .

ee |

a 449 PS

Appendix B—Opinion of United States Court of Appeals

yo otiepiracy to violate 18 U. 8. C. 662314, 2315 (18 U. S. C.

8371). After a three and one-half week trial before J udge

Wyatt and a jury, sentences were imposed ranging from

imprisonment for one ‘year and one day to four years.

For the reasons set forth below, we affirm, :

Count one charged 16 defendants, including the 4 appel-

‘lants,? and 6 co-conspirators not named as defendants‘

a with- participation in a-conspiracy which encompassed the

.. transportation in interstate and foreign commerce of ap-

proximately $1,000,000. in securities stolen from Bache &

Co. (Bache) a N& York brokerage. concern. Count two

charged appellants and several cbther co-defendants with

the substantive violation, 18 U. S. C. 62314, of transporting

stolens securities frem New Vork City to Newark, New

Jersey. Counts three and four charged other substantive

' violations of 18 U. S. C. §2314-involving transportation of

stolen securities from New York City to Miami, Florida

7 / Edwards was sentenced to four years of imprisonment on counts

iF one and two, the sentences to run concurrently. Jakob received

concurrent sentences of one year and one day on counts one and

two, and a $10,000 committed and consecutive fine on each count.

Lombardozzi and Parness were each sentenced to four years’ of

imprisonment on counts one and two, the sentences to run con-

currently with each other, but consecutively to sentences then be-

in g served. 5 . ay a 0 5

Named as defendants were Robert J. Dodge, Alan J. Pomeranz,

Nobert Edwards, Leo I. Sagal, Milton Parness, Joseph G. Mar-

„ . tinelli, Martin L. Carbone, Fred F. Sessler, Sheldon Max

N Jakob, William B. Gladstone, Bert Markowitz, John J. Lombar-

dozzi, Michael Lekacos, Mi „John Doe, a/k/a Robert

3 ne. oye ad 1

Named as co-conspirators but not as) defendants were Francine

Pomeranz, Gordon A. Tallman, L. Fisher, Francis P.

O Neill, Isidore Gorlitsky and Benjamin Clot.

| . :

The indictment, filed on July 1, 1964, was in four courts.

4-10

and from New Vork City. “ De : 3 E

to and at trial, the

ment’s motion.

were dismissed on the pres:

Much of the government’s case 8 on the testimony

of defendants Dodge, Pomeranz, Sessler, Gladstone and

Markowitz“ who testified in its behalf. Viewing, as we

must on app al, all the evidence presented and the reason-

able inferences flowing therefrom in the light most favor-

able to the government, United States v. Kahn, —— F. 2d

— (2d Cir. 1966) ; United States v. Robbins, 340 F. 2d

: 684 (2d Cir. 1965); United States v. Kahaner, 317 F. 2d

459, 467 «(2d Cir.), cert. denied, 375 U. S. 836 (1963), a

mosaic of cunning and nefarious crime emerges. In order

to avoid obfuscating the rather involved facts, it is useful,

| before presenting a detailed “review of the evidence, to

| summarize the government’ s case “and to outline in skeleton

form the manner in which fhe alleged conspiracy operated

Appendix B- Opinion of United States Court 0 Appeals

and the way in which each appellant was-implicated in

the substantive and corfspiracy counts. ty

The first link in the alleged conspiracy chain was Gordon

Tallman, an employee of Bache, who, over a period of time,

stole approximately $1,000, 000 of ‘‘blue-chip’’ - securities

régistered in the firm's name and turned them over to

7 Robert Dodge for distribution and ultimate sale. Dodge

passed these securities to Alan Pomeranz who, in turn,

gave them to Robert Edwards. During J une and July

5 Only the four appellants and 8 co-defendants, Martin L. Car-

bone, Sheldon Lowe and Leo I. Sagal were tried together. Segal

pleaded guilty to count one at trial. Carboneis appeal was dis-

missed on May 11, 1956 and Lowe did not file a notice of appeal.

. ˙ —ͤ— oval. ofthe

* ‘

2 . * 1 — - „

, 1

Appendia B—Opinion of United States Court of: Appeals

1962, Edwards distributed various quantities. of the siete

to Milton Parness who brought Fred Sessler and Sheldon

Lowe into the scheme hoping to utilize their brokerage con-

nections. However, they thought it advisable to deal with

Max Jakob, who also was familiar with the disposition

of stock and who was in need of funds for his ailing enter-

prise. Jakob turned for ‘aid to William Gladstone, ‘his

business associate and attorney, who ns assistance

from his law partner, Bert Markowitz. }

Devising a plan which. required a so-called Aa man”?

and big man”’ to dispose of the stock, Gladstone obtained

approximately $60,000 of Bache purloined stock which had.

been passed down the line from Tallman to Jakob. Glad-

stone turned these securities over to Benjamin (Buddy)

Olott, the ‘small man,“ who attempted to sell them, with

the aid of Isidore Gorlitsky, through the brokerage facili-

ties of Kesselman & Co. Gorlitsky was arrested, how owever, ,

on July 2, 1962, after the certificates which he pre-

sented were identified as missing from Bache.

Gladstone also utilized the services of John .

his „big man,“ to distribute the stock. Lombardozzi’s

attempt, with the aid of an unidentified and, unapprehended

co-defendant, ‘‘ Robert. Francine, to sell other purloined

Bache securities through the brokerage houses of L. P.

Denepberg & Co. and S. E. Levine & Co. failed on July 9

when it was discovered that Bache had impaired the nego-

aden of the stock through the use of stop orders.

Despite these events, however, arrangements were made

to transact à sale of a large portion of the stolen stock

on July 20 at the Robert Treat Hotel in Newark, New

7 ersey. The’ prospective purchaser -was secured by Clott

7 IE LONE Neen I +

Aig

e B- Opinion of United States Court of Appeals

and identified as a buyer from the West oast, Actually,

he was an agent of the Federal Bureau of Investigation}

acting undereover. The attempted sale in the New Jersey

hotel led to the apprehension of the 1 ein the

scheme and its eventual termination.

Because appellants vigorously challenge the r

N of the evidence underlying their convictions, we proceed. to

expand and present in greater detail the involved and com-

} * and sometimes cofffusing facts. .

The seeds of the alleged conspiracy were sown in No-

vember 1961 when defendant Gordon Nallman met defen-

dant Robert Dodge in the Tap Room“ of the Hotel Taft.

In the course of their conversation, Tallman informed

Dodge that he had access to the vault of his employer a

Wall Street brokerage house’—and could obtain for dis-

posal undetected, virtually any amount ‘of . se-

Lurities he desired. é

But, this meeting did not bear kruit immediately. 11 was

not until April 1962 when Dodge met Tallman and co-con- .

spirator, Francine Pomeranz, . that Mrs. Pomeranz sug*

gested that Tallman steal some stock which Dodge could

hypothecate for their mutual profit. After waiting for

Bache auditors to complete a periodie audit, Tallman, ap-

proximately ten days later, appropriated a certificate rep-

resenting 100 shares of General Motors stock registered |

in the name of one ‘‘Smythe’’ and turned it over to Dodge.

But, this prologue to the alleged conspiracy ended in fail-

ure. Dodge. was unable to meee the stock by using it as

oad At this meeting, Tallman. ic wot: exention Bache & Co. by name. -

8 Francine Pomeranz was. en. 0 her husband, defendant

. A is oo

Appendix B—Opinion of United States Court of Appeals’

; 7 . 8 „ 8

collateral for a loan because he did not have proper iden-

tification; ultimately, Dodge burned the certificate.

Undeterred by this initial lack of success, Francine sug-

gested that her. husband, defendant Alan Pomeranz, was

able to distribute stolen stock. It was. agreed that Dodge

would act as a middle-man 580 that Tallman and Pomeranz

could avoid dealing directly with one another.

In the latter part of May 1962, Pomeranz encountered

appellant Robert Edwards outside the Stage Delicatessen,

a restaurant in Manhattan, and asked Edward if he would

be interested in participating in the disposal of some stolen

securities. After learning that as much as $200,000 to

$500,000 worth of certificates might be involved, Edwards

counseled that it was imprudent to continue the conversa-

tion on a public street and suggested that Pomeranz con-

tact him in a few days. N .

Accordingly, in late May or early June, Pomeranz called

_ Edwards and was invited to the latter nine West

apartment. Edwards told Pomeranz he was interested in

the proposed transaction and they proceeded to discuss its

additional aspects. Indeed, Edwards stated that he had

already contacted someone in connection with the deal. Ed-

wards went on to suggest. that certificates registered in a

street name be obtained, and Pomeranz observed that since

the stock was to be acquired from a New York brokerage -

house, it would he advisable to dispose of the stock away

from New York. Edwards and Pomeranz also agreed to

make it a one-shot deal and take as much as [they] could

get.“ Estimating that they could realize 15%-20% of face

value, they decided to · obtain $1,000,000 worth of “blue-

. chip’? securities; to make detection of their plan difficult,

Se 5 ü A-14

” Appendia — of United States Court of Appeals on

they agreed not ‘to disclose their — e contacts. to one

another. ,

* Meanwhile and aun this same petted, appellant. Milton

Parnéss met defendant Fred. Sessler at the Debonair Res-.

: taurant in Manhattan and. discussed the possibility of em-

ploying Sessler’ b brokerage firm, Fred F. Sessler & Co., to

dispose ofAhe stolen securities. After speaking to his part-

ner, -defendant. Sheldon Lowe, however, Sessler advised

Parness-that his firm” wasdinadẽquate for the task and sug-

gested that arrangements with appellant Max Jakob could

be made. Sessler. also noted that stolen securities registered

in a street name“ as distinguished from an individual’s -

name would be readily negotiable.® :

The. day following his meeting with Edwards, 8

; phoned Tallman and described the “ one-shot' nature of the

‘proposed transaction. Tallman indicated: chat he would

have no difficulty appropriating ‘$1,000,000 of stock. regis-

tered in a street name and was willing to accept 5% of the

face value of the secuyvfties as his fee. When Tallman in- y

quired as to whether / front money’’—a deposit—would

be forthcoming, Pomeranz noted that he assumed so but

that the matter had not yet been determined.

At a subsequent meeting in Edwards’ apartment, Ed-

wards told Pomeranz that he had to be sure the stock was

not counterfeit and, therefore, he and his contacts wanted

ee: to examine a wives: tak Accordingly, ~~ spoke to his

o The j jury could wel have inferred, i in the light of all the evidence,

that Edwards had already contacted someone in connection with

the deal, and that Elea, at bn. the details of the transaction

with Pomeranz, out contacts. for

Poses the stolen securities 15 had taken N matter * with

. ²˙ . N La

A „

Appendix B—Opinion of United States Court of Appeals

wife, directed her to tell Dodge to obtain a sample and

added that, when Dodge was ready, he would meet him at

the Mermaid- Room of the Park Sheraton Hotel. Mrs.

Pomeranz stated that Dodge would be wearing one of

Pomeranz’-.isuits to facilitate identification since Dodge

and Pomeranz did not know one another. Pitt ht

Ihe following day, June 5, Tallman met Dodge at the

_ Coachman Bar on William Street in Manhattan and gave

him an envelope containing a single certificate represent-

ing 100 shares of General Motors stock registered in the

street name of Bache & Co. According to plan, Dodge pro-

ceeded to the Mermaid Room of the Park Sheraton Hotel 0

and met with Pomeranz who was seated at the bar. After

a few minutes, Pomeranz walked to the men’s room. and

: Dédge followed shortly. There, Dodge handed Pomeranz

the envelope containing the certificate of 100 shares of

General Motors stock which TaHman had earlier appro-

priated and given him. When Dodge inquired. about front

money, Pomeranz respondad that he did not know if any

would be forthcoming. Dodge and Pomeranz also agreed

that since they were now known to-each other they would

deal directly thereafter, and that Mrs. Pomeranz would

no longer serve as their intermediary; accordingly, Dodge

gave Pomeranz. the. phone number of Kennedy's Bar in

the Bronx where he could be reached. ; Wide

» Pomeranz delivered the sample to Edwards at his apart-

ment; Edwards stated that it-would be shown to his contact

the following day. Edwards also reported that no under-

standing had yet been reached on his and Pomeranz’ share

of the proceeds but he still believed they would receive

between 15-20%.

—

“As |

Appendiz B—Opinion of United States Court of 8

The sample was quickly dented down the line from one

to another; at a meeting in Parness’ car between Parness

and Sessler,‘ Parness took the 100 share certificate from: ‘the

trunk of his car and showed it to Sessler. Parness explained

that this was a sample and that the other securities available

were similar in form. Sessler indicated his willingness,

with Lowe, to participate in the distribution of the stock.

Edwards later reported to Pomeranz that the sample had

been shown to his contacts and that, in a few days, he would

let Pomeranz know when he required delivery of the bulk

of the stock. Soon thereafter, Pomeranz told Dodge his

ö man thought it was = and that he weeks need at least

a million dollars wo

Dodge relayed this information to Tallman and on June

°8, at 9: 200 A. M., Tallman phoned Dodge, declared That he

was all ready and asked Dodge if he could ‘get it from

hint that day.“ At first, Dodge suggested that they meet

again at the Coachman Bar; however, a different bar on

William Street was finally agreed upon as the meeting place.

At about noon, Tallman and Dodge entered the men’s room

of the bar Lave Tallman removed from the inside of his

shirt a manila envelope which he handed to Dodge wha, in

turn; tucked it into his ‘trousers, Tallman suggested that

‘Dodge compile a list of the certificate numbers because

they are our only protection:“ ;

After leaving, Dodge immediately 1 to his

hangout“ at Kennedy's Bar in the Bronx. In the men's

room there, he opened the manila envelope and counted

approximately seventy 1 100 share cértificates of such. ‘‘blue-

chip’’ securities as A. T. & T., I. B. M., d. M., DuPont and

Standard Oil of New J weer all in the x name of Bache. As,

8 *

417 ° *

Appendix B Opinion of United States Court of Appeals

instrueted, he compiled a list of the certificate numbers and

then placed the securities in a cigar box which he secreted

in the trunk of Mrs. Kenngdy’s automobile. pas ae

Meanwhile, Sessler was making arrangements for the

disposition of the stock. Having determined that his or-

ganization, an over-the-counter firm, could not undertake

to séll securities listed on the New York Stock Exchange,

Sessler, at Lowe’s suggestion, contacted appellant Max

Jakob with whom Sessler had previous business dealings.

Jakob and defendant William Gladstone were partners in

Wilco Commercial Corp. (Wilco), a business engaged in

interim financing and the sale and trading of put and call.

options. Jakob visited Sessler’s office where Sessler ex-

plained that there was a large quantity of securities avail-

able which were going to be taken by a partner at Bache

who needed the money to pay off his gambling losses.

Sessler also noted that, because of the partner's position,

the loss would not be discovered for some time. While

Jakob expressed interest, he noted that until he had re-

viewed the proposal with his partner, Glads

not commit himself. a 8

Jakob did not delay in discussing the proposed transac-

tion with Gladstone. He noted that the securities could

be utilized to rescue Wilco from financial straits caused by

the general decline of the stock market in the Spring of

1962.51 Gladstone, who was deeply in debt to Jakob, pointed

financing of property owned *

related to this case, she declined to give her approval.

n Gladstone’s lavy partner, defendant Bert Markowitz, was present

during some of these discussions. Gladstone and Markowitz

were ſdisbarred for professional misconduct cocerning their han-

dling of negligence cases. 55 b

—

tones he could Ea

—

10 Jakob and Gladstone had hoped *. ed $480,000 tem d e.

S. Ja t, for reasons not

—

118

Appendia B Opinion of United States Court of Appeals

out that they ran the risk of criminal sanctions if-their par-

ticipation was discovered; however, when Jakob stressed

Wileo's need for funds and indicated his intention to be-

come involved, Gladstone decided to go along. i

Jakob, Gladstone and Sessler thereafter met several |

times to discuss what each would realize from the transac-

tion. Jakob-and Gladstone indicated that they would dis-

tribute and sell the securities for 50% of. face value.

Sessler protested, however, stating that this would be an

impossible arrangement since he was paying 55% to obtain

the stock. After further negotiation, it was finally agreed

that Sessler would receive 5% while Jakob and Gladstone

would ‘obtain the remaining 40%. Jakob told Sessler that

since they were dealing with large amounts, percentages

were not all that important and besides, I have good

connéctions in Europe and elsewhere; and in 't be so self-

ish, and we can. make some ne not only today, but in

the future.“ : -

Between June 8 and June 16, Pomeranz and Edwards

were in communication with each other concerning the de-

livery of the stock, and, on Saturday, June 16, Edwards

told Pomeranz that he was ready. Pomeranz . this

information to Dodge who borrowed Mrs. Kennedy's car

and met Pomeranz at 89th Street and Columbus Avenue in |

Manhattan. Pomeranz explained that although the front

money matter had not been settled, his contacts were ready

‘‘to start doing business.“ The two drove to Edwards?

apartment where Dodge waited i in the car while Pomeranz

went inside. He returned shortly, however, noting that

negotiations concerning front money were. still in progress

and that ey should wait for a while before delivering the

A-19- ;

Appendix B—Opinion of United States Court of *

Stock. Accordingly, Pomeranz and Dodge went: to a drug ·

store and after several phone calls to Edwards, Pomeranz

told Dodge that no front money was available but that if

they turned over the stock, they would regeive $5,000 every

4 business days until their share of the proceeds had been

paid. Dodge reluctantly agreed, removed the cigar | box

containing the stock from the trunk of Mrs. Kennedy's car

and gave it to Pomeranz who wrapped it in a 5

Pomeranz brought this erudely concealed package to. E

wards’ apartment where it was opened revealing $1,005, 000 |

worth of securities registered in the name of Bache. Be-

cause front money had not been furnished, Edwards and

Pomeranz decided that only $100,000 should be turned over

to “dwards’ contact. Dodge phoned Fallman to- report

what had transpired. | “

Several days later, Parness gave Sessler three 100 share

certificates of I. B. M., DuPont and A. T. & T. stock kegis-

tered in the name of Bache. Sessler showed them to Jakob

who remarked that they look like diamonds”’; ultimately,

Sessler turned this stock over to Jakob. 12. At a meeting in

J akob 8 apartment, Gladstone outlined to Jakob and Sess-

ler his proposal to distribute the stock through two chan-

nels: the plan called for a small man, living in New Jer-

sey, to deal with brokers and banks and a big man’? to

efficaciously dispose of large amounts. Gladstone’ s ‘‘small

man’’ was co-conspirator Benjamin Gott and his bie man

ee testimony i is unclear as to whether Sessler gave this stock to.

Jakob who, in turn, delivered it to Gladsfone or whether Sessler

gave it directly to Gladstone. On direct examination Sessler tes-

_ tified that he turned the stock over to Jakob; on cross examina- ca

tion, he indicated that he passed it. to Gladstone.

7 9 —

8 ~*~ .

. * 5 af

2 .

‘

— nang ex

A. -20 f

Appendia B—Opinion of United States Court of Appeals

was Gopellant John Lombardgazi. The plan wae | aooepted

and shortly theréafter Gladstone and Markowitz discussed

the Proposal with Clott who was anxious to participate.

Toward the end of June, J akob gave dladstone the three

certificates he had received from Sessler, and Gladstone

‘surreptitiously delivered them by ostensibly abandoning’

the securities—hidden in a newspaper—in a phone nooth

to be retrieved by Clott who was Close by.

Lombardozzi was brought into the scheme by Marko’ itz

who had been his lawyer at one time. Lombardozzi Was

. informed by Gladstone at a meeting at the law offices of

Gladstone. and Markowitz of the availability of “ai

steck registered i in Bache’s name. Thereafter, he witnessed |

Gladstone give Sessler $10,000 cash, in an automobile in

which Gladstone, Lombardozzi and Sessler were present,

for the purpose of acquiring $100,000 worth of stock. For

some undisclosed reason, Sessler was unable to obtain the

stock from Parness and thus returned thé $10,000 to Glad-.

stone who, in turn, gave it to Lombardozzi. A day or two

later, however, a parcel of the appropriated stock was ac-

‘ quired in the following per: Sessler, Gladstone and

5 Lombardézzi drove to Leni on Avenue and 57th Street

where Sessler met Parness and ‘defendant Martin Carbone

in the Mayflower Restaurant. Parness told Sessler the

stock would be arriving shortly. After a brief discussion,

Sessler, Parness and Carbone went outside,. Carbone crossed

the street and talked briefly with defendant George Mar-

tinelli who handed him a newspaper. Simultaneously,

Sessler gave Parness the $10,000,- which had previously

been siven to him by Gladstone, and then crossed the street

7 *

i 421

Appendiæ B-—-Opinion of United States Court of Appeals

to meet Carbone in a drugstore. Carbone turned the news-

paper over to Sessler; secreted in its folds were securities

registered in the name of Bache & Co: Séssler then pro-

. ceeded to the automobile in which Gladstone and Lom-

bardozzi were waiting and gave the newspaper containing

the stock to Gladstone who passed it to Lombardozzi.

The $10,000 received by Parnéss was not distributed in

one installment. After Pomeranz had spoken to Edwards

several times concerning payment, Edwards reported that

he had received $2,000 to show ‘‘go8d faith.” Pomeranz,

who had expected to receive $5,000 to give to Dodge and

Tallman, expressed disappointment but nevertheless tock

the $2,000. After explaining to Dodge that he was without

funds and was. for that reason keeping $100 for himself,

Pomeranz gave him the balance. Dodge retained-$900 and

delivered the remaining $1,000 to Tallman. i

During the last week in June, Edwards told Pomeranz

that he had received $8,000 more but had given $100 to

_ the courier who had delivered it. Edwards and Pomeranz

divided the remaining $7,900, Edwards keeping $2,500 and

Pomeranz reeeiving $2,400 plus an additional $3,000 which

he later gave to Dodge to be split with. Tallman. Pomeranz .

indicated to Edwards his dissatisfaction’ wi not having

received more money in view of Edwards’ distribution of

an additional $100,000 of stock. Edwards consoled Pomer- .

anz by stating that he expected to receive their full 15%-

20% of the proceeds and that his people might well pay an.

amount (over and above our percentage and buy another

three, four or a half million dollars worth of stock. ?-

On June 28, the first ‘outside’? disposal of the stock was

attempted. . Isidore Gorlitsky, working for Clott and. pos-

Appears BOpinion of b United States Court of Appeals

ay ing under the peendonym, „Edward Adler,” met with one

Marvin Tabak, 4 registered representative employed by

«. . the brokerage. house of Kesselman & Co. Gorlitsky, claim-

ing to have been sent i anonymous mutual friend and to

have $1, 000,000 worth of securities to sell; p ‘produced three: —

100 share certificates of I. B. M., A. T. & T. and DuPont

Stock, registered in the name of Baché and valued at ap-

f pProximately 863,000, which he asked Tabak to sell. Tabak

refused unless adequate proof of ownership was submitted |

and the unidentified friend disclosed. At Gorlitsky’ s re-

quest, Tabak met Gorlitsky at 6 P. M. of the same day: at a

diner, on the Belt Parkway, for further discussions con-

re cerning the proposed sale. Gorlitsky offered Tabak a

bonus“ of 5500 above his regular commission for each

- $100,000 of stock sold but Tabak replied, ‘‘I don’t have to

take any extra money. We will sell ae Lor: you if

> the stocks are legitimate. |

Tube following day, Gorlitsky gave Tabak the three certif-

icates in exchange for appropriate receipts. Tabak ex-

. plained that Gorlitsky should return four business days

later on July 2 to collect the proceeds of the sale provided

he would . Present proof af ownership: In the course of -

“their ‘meetings, however, Tabak had become suspicious and, :

omer soon ds Gorlitsky departed, he asked the office manager 1

ae check with Bache concerning these certificates. _— ä

Gorlitsky immediately passéd the word that proof of

3 ownership in phe form of. completed transfer slips was .

needed to consummate the sale. Clott called Gladstone, re- ie ee

Ported Gorlitsky’s progress and asked what could be done ia}

to obtain the appropriate documents. Gladstone relayed

‘this oa sess to J oe and then’ to. Sessler who *

2.28 .

Appendia B- Opinion of United States Court of Appeals

to Edwards because upon Pomeranz? inquiry about addi-

tional payments, Edwards replied that the proceeds from

| Parnesa. Parness appr conveyed this information

the sale could not be collected until transfer slips were

presented. Pomeranz accordingly-contacted Dodge who in :

cane to meet Dodge the following day; at that tim he ö

delivered a packet of blank Bache & Co. .

These were passed along the line from Dodge to Mmeranz

to Edwards to Parness to Sessler. In the presence of

‘Sessler, Gladstone and Markowitz, Lowe typed identifica-

tion and other relevant data on the slips, and Gladstone

delivered them to Clott. On July 2, Gorlitsky presented

the slips to Tabak at Kesselman & Co. By this time, how-

N ever, the police, as a result of investigating at Bache, ar-

rested Gorlitsky. . ,

Gortlitzky’s arrest produced a wave ‘of hin apprehension

all along the alleged conspiracy chain. Clott called Glad-

stone and stated that there was ‘beaucoup trouble’’ be-

cause his manꝰ had been arrested while attempting to

negotiate the seeurities. Gladstone reported this informa-

tion to Sessler, who had come to Gladstone’s office on other

business, but Gladstone. assured him that bail and counsel a

would be furnished. That evening, Gladstone informed

. Jakob of Gorlitsky’s arrest and that Bache had eee

discovered that some securities were stolen. i.

Tallman quickly became aware that something “= gone

awry. On July 2, he called Dodge from Bache to report

that the police were all over the place“ and that he

heard on the grapevine that * had been arrested

A-24

Appendia B—Opinicn of — States Court a Appeals

regarding this stock.“ Tallman counseled caution should

Dodge. seck to communicate with Pomeranz. Later that

day, however, Pomeranz called Dodge and when Dodge

related what had transpired, Pomeranz stated that he had

already been informed of the arrest and that there was

ütttle reason for excessive. — since the person who

had been apprehended was a mere ‘‘flunky, . . a bookie .

had gone wrong. Sessler played down. the arrest, assuring.

from Florida,’’ who ‘‘didn’t know a thing.“

Parness also pressed Sessler for information as to what

Parness that while it was unfortunate, it was not a serious

Bobby,“ and put Edwards on the. — for further reas-

setback. —

Edwards’ anxiety over the arrest: was not easily as-

suaged. In his- presence, Pomeranz called Dodge and asked

whether Tallman could be setting ‘‘traps’’ since people were *

being arrested ‘fall over the place.“ When Dodge assured

W ps pg

tories, Pomeranz replied, „Well, you tell that to my boy

surance.

Despite Gorlitsky 's arrest, money an to be dis-

, tributed among the participants. in the scheme. On July 5, f

f Edwards told Pomerahz that he had met his contact and

received an additional $8,000. . Edwards retained $2,500

and gave the balance to Pomeranz who kept $2,500 for him-

self and later delivered the remaining $3,006 te Dodge“

Pomeranz pointed out that although approximately 5200,

pe eee,

000 worth of stock had been distributed, they had received

only $18,000 which was $12,000 less than their 15% share;

Edwards replied that the balance would be fortheoming

shortly. 0

16 *

. * h RICA ILLICIT ELEN! IE LIP AIT ERE — . ſ——d

— — . — - ~ — 8

. A-25

; Appendia B—Opinion of United States Court of Appeals.

During the period that Gorlitsky had been attempting

to dispose of the stock allocated to Clott, Lombardozzi, the

so-called big man, working through Robert Francine, at-

tempted to dispose of securities amounting to $100,000 —

which he had received from Sessler. On June +28, Lom-

bardozzi asked Herman Weinstein, a securities trader at

L. P. Denenberg & Co., if he could sell ‘*blue-chip’”: stock

| registered in a street name. Weinstein, not yet qualified

as a registered representative, suggested that his employer;

Lee Denenberg, could do so: Lombardozzi advised Wein-

stein that a friend of his would contact him the following

Area e N

As scheduled, the next day Robert Francine, having in-

troduced himself as a friend of ‘J ohn Lombardo, came to

Weinstein’s office and &pon inquiry by Francine was told

by, Weinstein that proceeds from the sale of stock could

not be collected until four business days after sale. Fran-

eine then produced three 100 share certificates of Polaroid,

DuPont and General Motors stock registered in the street

name of Bache which was turned over to Weinstein and

for which he was given a receipt. After checking the serial

number of the DuPont certificate with the clearing house

and ascertaining that no stops had been issued against ‘it,

Denenberg sold the three certificates, On July 3, Denen-

berg traded an additional 100 share certificate of DuPont

in Francine’s behalf. At Weinstein’s suggestion, Francine

also utilized the offices of S. P. Levine & Co,, a brokerage _

firm; to dispose of more stock. Agreeing to a “cash trade

resulting in payment within 25 hours at a penalty of from |

iy to * a point per share, Francine sold through the Levine. .

offices 200 shares of G. M., A. T. & T. and Standard Oil of

— —— —

2 Appendia Opinion of United States Court of Appeals

New Jersey registered i in the name of Bache for approxi-

mately $41,000.

On July 5, Weinstein gave Francine two checks, drawng

on the account of L. P. Denenberg &. Co., to cover the pro-

ceeds of the stock Denenberg sold in Franéine’s behalf.

Francine was told, however, that the checks could not be

cashed for 3 additional business days."* The following day,

Lombardozzi gave Sessler the two Denenberg checks nd

suggested that they be used to purchase additional stock.

After discussing this proposal with Parness, who insisted

upon receiving cash, Sessler returned the checks to Lom-

_bardozzi. Even upon. speaking directly to Lombardozzi,!

Parness remained adamant in demandimg cash. That eve-

ning, when Pomeranz visited Edwards’ apartment, he was

shown the two Denenberg checks. Upon Pomeranz’ inquiry

concérning their remaining. $12, 000 share, Edwards ex-

plained that the checks would be cashed i in a few days and

they would then be paid.

On J uly 9, Francine. received a check from 8. P. toni 7

& Co. for approximately 830, 000 in partial payment for

the stock the Levine firm sold at his request. But, when

4 Francine learned from Levine’s bank that there were in-

sufficient funds to reduce. the check to cash, he angrily re-

turned to Levine’s office where, in an attempt to placate

him, he was offered two checks —one for $9,000. “and the

ether for $21,000—with the suggestion that the smaller

could be cashed immediately, Francine flung the checks on

the table, ond demanjled cash or a certified check, When

13 This extra time wes required 80 that the checks given to ini:

berg in payment for the stock could clear. — ig

14 This was the first time that Sessler introduced Lombardozzi. to

his contact. 8 f * 0

; Opinion of United States-Court of ‘Appeals or]

nei her wz s. forthcoming’ he left in anger. A=short while 7

later, Weinstein told Levine that he received a call from 0

Yemenberg, who had discovered à problem with the stock,

Later that day, Edwards informed Pomeranz that a

8 op had been placed on the certificates and that if the re-

maining $850,000 of stock’ was not turned over to his as- us

soeiates without payment, he would ‘be in the jackpot. .

Edwards pointed out that his contacts believed \they had

been betrayed and would hold him responsible if the addi-

tional stock was not immediately forthcoming. : Concerned

over Edwards’ welfare, Pomeranz. consented telling Ed-

wards that under these circumstances money Ib omes]

_ Meaningless.’* Edwards observed that if. the stock was sur-

rendered, he and Pomeranz might still receive 10% pf its

face value. ag. e eae

Accordingly, Edwards turned over the remaining securi-

ties and, in the middle of July, Clott informed Gladstone

that he found a customer“ a big buyer on the West Coast „

—who was interested in purchasing the Bache certificates

which had not yet been reported as missing or stolen.

After conferring with Jakob, Gladstone obtained from

Sessler a list of the numbers of those certificatés wi

were available for sale. This list, designed to aid the West

Coast“ buyer in determining which securities he wished to

; purchase, was delivered by Gladstone to Clott. Gladstone

* then reported to Jakob that he had obtained the list of se-

eeurities and delivered it to Clott. Jakob. expressed peßs -

mism over making any money on the transaction but noted

that in view of Wilco’s critical financial situation, anything

would be helpful at this point.?

bd *

“A, ie — 7 9 98

aun r ˙ I ere P — — — — —— citar eds —

— 2 ————— . — 5

— —

A-28

Appendiz B-Opinion of United States Court of Appeals |

Initially, it was arranged that Clott’s biyer would be

met at Idlewild Airport in New York (now Kennedy Inter-

national Airport), but the plans were changed and th

transfer of the stock was fixed for July 20 at the Robexd

Treat Hotel in Newark, New J ersey. But, here the plot

thickens for unknown to the other participants in the

scheme, Clott had begun cooperating with the F. B. I. and

his customer“ was actually Special Agent Ralph Desena

using the ‘pseudonym „Ralph Cava. On July 20, Desena

occupied Room 911 in the Robert Treat Hotel) in mid-

afternoon, Clott accompanied by Parness, Lombardozzi ..

and Martinelli entered the room and, after introductions,

negotiations commenced. Desena stated that he was given

to understand that he was to pay 40% of face value for

those certificates which had not been reported as. missing

and 10% for the others. Parness stated that the deal was

only for ‘‘elean”’ certificates for which Desena was to pay

35%. Parness noted that the other stuff could not be

Bold for 10%. since more than that was paid for it. De-

ferring discussion on the securities ‘reported as missing,

Parness told Desena that he was prepared to sell two

I. B. M., four A. T. & T., five General Motors and seven f

Standard Oil certificates, each r. representing 100 shares.

Desena checked, Parness’ calculations and agreed that 35% |

of the face value of these securities came to $61,836 based

erg prices listed in that morning's New York. Times.

én Desena indicated willingness to. make payment,

Parness left the room to gather the stock. Lombardozzi |

then asked Desena about his. interest in the certificates

which were listed as missing and noted that they èould be

obtained i in an hour and a half. When Deseng equivocated,

‘Lombardo2zi explained that the other stuff is good, it's

‘e 7

— — — e

V. .

PF 2 DS ee Fb AOA RAGA — —— ——— — — — ayy 2 . ke eee

S r —— — — —— eras — 1 ———

. nie

| 8 Appendix B-Opinion of United States Court of Appeals

just hot?” and added that “‘unfortunately something hap-

pened to us’? which led to the discovery * Bache of the

missing securities —

: At this point, Desena answered a knock on the dion. It

was Carbone who asked for Martinelli and handed him a

newspaper in which an envelope had been secreted. Opefi-

ing the envelope, Martinelli removed 18 certificates and

handed them to Desena who, after inspecting them to as-

sure himself that they were the stolen Bache securities,

left the room explaining that he would return shortly with

the money. ed

A few moments after Desena left, other F. B. I. agents

entered Room 911, arrested Lombardozzi and Martinelli

and found the 18 certificates under a pillow as well as a list

; published by theNational Association of. Securities Dealers

(N ASD) containing the. numbers of the certificates re:

ported as stolen from Bache. It is interesting that none of

the certificates found in the room were described on the

yg NASDlist. Edwards, Jakob and Parness were appre-

1 hended eubseduentix. 5 ~

‘ea?

0 We shall first consider. 8 contentions’ raised by ap-

pellants which affect all or several of them. We shall then

discuss additional arguments specifically. raised on behalf we

of partner defendants.

— 3 1 or THE Evipence

The above detailed statement of the facts has been neces-

sitated by the vigorous attack made upon the evidence and

tue sufficiency thereof. a. Sa Jee Bose 7

Appellants raise the not unfamiliar contention that the

evidence demonstrated the existence, not of a single con-

spiracy, but.of at least two. It is argued that the first con-

| spiracy was composed of Tallman, Dodge, Pomeranz and

Edwards who. were concerned with appropriating the stock

and its initial distribution; the second conspiracy, it is con-

tended, was comprised of Parness, Sessler, J akob, Glad-

stone, Lombardozzi and others who participated i in subse-

quent distribution efforts. Appellants press upon us that

there was no proof of any link between thé two groups.

The evidence, however, amply refutes this contention and

discloses the classic single ‘chain’? conspiracy. The circu-

lation of the certificate for 100 shares of General Motors

stock as a sample, the identity between the numbers of

_ the certificates reported taken from Bache and those of-

fered for sale at the New York, broker houses and in

New Jersey; the Passing along the line of the Bache and

Co. transfer slips and the Denenberg checks, the pe

par-

neetion and linkage in one form or another of all the

ticipants i in the disposal of the securities stolen by Tallman

from Bache, provided sufficient evidence of a single con-

spiracy to justify submission to the jury of the question

as to whether there was one overall scheme. The trial

7 judge’ 8 instruction in this connection properly focused

the jury's consideration of. this question and the jut¥’s

‘ verdict determining that one overall conspiracy to trans-

port securities in interstate commerce cannot be faulted.

Appendiæ B—Opinion of United States Court of Appeals

The evidence also refutes Edwards’ contention that there

was no proof that he ever dealt with Parness. The jury

could have. inferred these dealings from incidents such as

that testified to; for example, that Pomeranz delivered the

“fi * 8

* 8

Appendiæ ee States Court of Appeals .

Bache & Co. trarfsfer slips to Edwards which ultimately

ended up in the possession of. Parness who subsequently ay.

4 431

turned them over to Sessler. And, it is black letter law

that all participants in a piracy need not know each

other; all that is necessary is that éach know that “‘it has

4 :

a ‘séppe’ and that for its success ‘it requires an organization

widet than may be disclosed by his personal participation.“

= States v. Agueci, 310 F. 24 817, 827 (2d Cir. 1962),

ert. denied, 372 U. S. 959 (1963); United States v. Strom-

berg, 268 F. 2d 256 (2d Cir.), cert. denied, 361 U. S. 863

(1959). The chain“ conspiracy has asits purpose

the disposal of the trai commodity into the hands of

the ultimate purchaser. See Um tes v. Agueci, supra.

Jakob asserts that there was insufficient proof that the

securities were actually stolen or that he possessed knowl-

edge of this. The surreptitious and furtive transfers. of

the stock from Tallman to Dodge and from Dodge ‘to

Pomeranz in bars and lavatories for a fraction of its face

value and the other unorthodox methods utilized in its

disposition are ample evidence from which the jury could

draw an inference of theft. Moreover, Gladstone’s conver- |

sations and activities with Jakob and his testimony that he

warned Jakob of possible criminal sanctions if their par-

ticipation in the disposal plan was discovered leaves little

room for argument that the jury could not have drawn the

inference that Jakob was fully aware that he was dealing |

in stolen stock. .

Lombardezzi also raises the question that the evidence

was not sufficient to show that he was a knowing partici-

pant in the conspiracy. We need not linger long over this

0 '

Lj * f ö .

4052

Appendix B Opinion. of United States Court of Appeals

contention for our recital of the evidence clearly demon-

strates that there was ample support for the verdict- that

he was a knowing participant in the scheme. »

: X

' a —— *

Jakob and Lombardozzi maintain that their convictions

should be reversed because the commission of the dffenses

was the’ result of entrapment by the government. working

through Clott: and Special Agent Desena. The crux of

their argument, as we understand it, is that the govern-

ment added the interstate element to the offenses charged.

by arbitrarily switching the transaction with Desena from

Idlewild Airport in New York to the Robert Treat Hotel |

in New Jersey. |

We find this argument mpersuasive. Sateen 1 re-

“alte from overzealous activity by government agents de-

signed to incite an innocent man to crime. But, “‘[a]rtifice

_ and stratagem may be employed to catch chose engaged

in criminal enterprises.“ Sorrells v. United States, 287

V. S. 435, 441 (1932). In the present case, the government

did no more than afford the opportunity and facilities for

the commission of the offense charged; the participants

were awaiting any propitious opportunity,“ see United

Sfates v. White, 223 F. 2d 674, 676 (2d Cir.), cert. denied,

350 U. S. 888 (1955) ; United States v. Riley, —— F. 2d

(2d Cir. 1966), and never considered, themselves limited by

New York State’ ’s boundaries. Indeed, when the scheme:

was in-its early stages, ‘Pomeranz suggested to Edwards

| that the stock should be disposed of outside N ew Vork, and

J akob and: Lombardozzi mentioned Europe as a possible

piace for sale. Moreover, it is significant that no evidence

af ~

A-33

Appendix: B—Opinion of United States Court of Appeals

. on the question of entrapment was introduced. at trial; the

issue was not adverted to in any of the defense summa-

tions and no instructions to the jury on the subject. were.”

when Lombardozzi moved for acquittal on this ground. In

requested. Indeed, the only and solitary mention of en-

trapment occurred immediately prior to the coprt’s charge

view of the absence of any evidence of entrapment, J udge .

Wyatt ney denied this motion.

— OF THE 88

AT THE Rosert TREAT Hore.

It is urged that the government invaded the constitu-

tional rights of Lombardozzi and Parness under the First,

Fourth and Fifth Amendments, by recording their discus-.

sions at the Robert Treat Hotel, concerning the sale of the

-Bache securities. While this general area of law is once

again sub judice in the Supreme Court, see United States

v. Osborn, 350 F. 2d 497 (6th Cir. 1965), cert. granted, ——

U. S. (1966), we believe that on the facts and circum-

stances presented here, appellants’ argument lacks merit.

The F. B. I. rented Rooms 911 and 912 at. the Robert

Treat; appellants were invitees who had no property i ine

terest in the premises and, more significantly, were there

voluntarily to further their own purposes. While the Su-

has not been undivided on this question, it

has consistently held that the prohibition against unred

sonable sea’

and use of recordings of conversations between govern-

ment agents and Tapes 1 of — activity.

15. The microphone was placed in: Room 911 and the recording

6 was placed 1 in Room 912.

* 5

t .

ey ° e

„„ SSS E

s and seizures does. not prevent the making 3

Anpendir B Opinion of United States Court of Appeals

5 2

Lopes v. United States, 273 U. S. — Lee v.

United States, 343 U. S. 747 (1952); Goldmaa v. United

States, 316 U. S. 129 (1942). And, in dealing with a case

quite similar to that presented here, we observed that the

_ planting of microphones i in a hotel room with [the] consent >.

[of its. occupant does not amount] to ‘trespass within the —

definition of the majority in On Lee, or approach the physi- |

cal invasion of another dwelling without consent perpe- «

trated with the spike mike whose fruits were excluded in

Silverman v. United States, 365 U. S. 505 (1961). United

States v. Kabot, 295 F. 2d 848, 854 (2d Cir. 1961), cert.

denied, 369 U. S. 803 (1962). Moreover, we note that?

Agent Desena’s testimony describing the conversations in

which he participated with Lombardozzi and Parness was

adinitted without objection.

TRR Cn

. Arved challenge the judge 8. e in several re-

* spects.

e Jakob urges that the court W an 0 and in-

8 correctly marshalled the evidence and weighted it in favor

of the prosecution. We have carefully reviewed the court’s

instruetions and find this contention. without merit. Since

~ . most of the trial was occupied with the presentation of the

goverument’s ease, it was to be expected that the. judge

would devote more time to the government's case in um-

marizing the evidence. See United States v. Dardi, 330 8

7. 2d. 316, 330 (2d Cir.), cert. denied, 379 U. S. 845 (1964);

Dnited States v. Kahaner, supra at 476. Moreover, Judge

Wyatt é gave the usual admonition to the jury that its recol-

lection ‘of the ‘facts and not his was controlling, that it

— Eee eee eee

- Appendia * Opt. of United States Court 1 ‘Appeals.

must consider all of the evidence and not merely that men-

tioned by the court, and that the jury was the sole judge |

of the facts. In addition, just before en the case to

the j jury, Judge Wyatt instrueted them:

9 t ould not possibly; in Etenpelig to summarize

the co:ientions. of the parties mention everything.

. [Y?ou are to draw no conclusions from my failure |

te, include something. i in this summation. )

We find no error in the judge 8 marshalling of the evi-

dene. See United States v. Bentvena, 319 F. 2d 916, 940

n. 14 (2d Cir.), cert. denied, 375 U. S. 940 (1963). Indeed,

the judge displayed an awareness and sensitivity to the

management problems inherent in multi-de/endant con-

spiracy cases. See United States x. Agueci, supra at 840.

Jakob also argues that the charge was deficient i in fail-

ing to state that each participant i in the conspiracy. must

have had knowledge that the conspiracy involved an ele-

ment of interstate or foreign transportation. We find the

instructions on this point to be unmistakably clear and

correct. Judge Wyatt instructed the j jury that it could con- eet

viet only if it found beyond a reasonable doubt that the

“4 ae embraced the. concept that the stolen securities

‘*shall cross state lines or move to foreign countries. The

judge added that the jury was duty bound tb acquit unless

it found that the conspiracy comprehended ‘‘either ex-

pressly or by implication, the transportation of the stolen

certificates in interstate’ or foreign commerce.”? And,

stressing the requirement of knowledge, the court added:

So it ninst be shown beyond a reasonable doubt. that

the e of the conspirators, either expresely

ga |

| Appendia B~-Opinion of United States Court of Appeals

or vy implication, was that the stolen certificates would

move in interstate or foreign commerge. ‘bal

Finally, the court noted that each defendant ‘must te found

to have knowingly associated. himself with the conspiracy. *.

We also find no error in that portion of the charge which

_ instructed on the relationship between the conspiracy and

; substantive counts. The court charged that a defendant —

-could be convicted on the substantive count of transporting’

stolen securities in interstate commerce (Count Two) if

the jury found that the substantive offense was committed

in furtherance of the conspiracy ‘and that, at the time of

the commission of the. substantive offense, the particular.

defendant was a member of the conspiracy. This instrue-

tion was based upon and correctly reflects the teaching of

Pinkerton. v. United States, 328 U. S. 640 (1946). Jakob

now urges, for the first time, that the court should have

added that ‘‘the substantive offense must have been com-

mitted in furtherance of the conspiracy and not merely as

an unforeseen part of the ramifications of the plan, eiting

Dnited States v. Barrow, 229 F. Supp. 722, 733 (E. D. Pa.

1964). Aae this addition would not have detracted from

id not request such an in-

struction and the district judge cannot be faulted for not

utilizing additional words ee by those men the

benefit of afterthought, ~~ > -¢.-

Moreover, we see no merit in the criticism of the a

instruction on reasonable doubt; as given, it was similar to

that approved i in Holland v. United States, 348 U. 8. 121,

140 (1954) and United States v. Heap, 345 F. 2d 170, 171

. (2d Cir. 1965). Nor was t prejudicial error for the court

to set forth the reasons iv wy e regarded ‘conspiracy

a at —— . — Pa akibin — —

urea e of bauen States Court of Appeals

as a crime: meriting: separate treatment from substantive

offenses; While we ‘gee little purpose in advising the jury

of the congressional . intent in enacting the statute, the

court did little more than paraphrase the language o *

United States v. Rabinowich, 238 U. & 78. (1915), quoted

1 with approval i in Pinkerton, v. United tates; a, at 6

concerning the dangers of cunspitnoy:/ 3 jee

agree ennai Axuichine Mona Tuan 5

ö , ONE APPELLANT D masee

Further i issues are ‘raised. which concern 1 dert or all 3 :

of the ‘appellants ; they can omen be considered. at

this juncture.

It is ‘urged that the 3 of the trial was vitiated

when the government called Gordon Tallman to the stand

knowing that he would refuse to testify and would claim

the privilege against self-incriminationlie It i is clear that

the government suspected that Tallman might invoke the

Fifth Amendment privilege; indeed, i it had arranged for

a Legal Aid ‘attorney to be prssent to Advise him and had

submitted a mémorandum to the court contending that the

privilege was unavailable tc Tallman on the ground that

1 ne was immune from further prosecution as the result of

his plea of guilty to a federal conspiracy ‘indictment and 5

his oonviction on a related state charge. We are convinced

that the government called ‘Tallman i in good faith reason- _

ably expecting the district judge to order hint te eres ce

" This claim is made for the fst time on appeal.

The government a didnot rene tit Tallin Was nb in 8

maune from prosecution ee offense ge

eee of btn fers Lo

A386

Appendix B- Opinion of United States Court of Appeals

‘Thus, we arg not dealing with a case where the prosecu-

tion made a conscious and flagrant attempt to build its

case out of inferences arising from use of testimonial

privilege, see Namet v. United. States, 373 U. S. 179, 186

(1963). Mored¥er, in in contrast to United States v. Maloney,

262 F. 2d 535 (2d Cir. 1959), the government made no

reference to Tallman's failure to testify; indeed, it re-

quested that the jury be excused as soon as ‘Tallman was.

sworn. And, the judge’s instruction—not present in Ma-

loney—removed any possible inference against the defense

which the jury might have drawn from Tallman’s refusal

15 (2d Cir. 1957).

to testify2* See United States v. dm, 249 F. 2d 371,

Nor are we persuaded that the appellants y were preju-

] diced by the guilty plea of co-defendant Leo I. Sagal on

the first day of trial. Sagal entered his plea in the ab-

sence of the jury; the court then instructed ¢hat Sagal had

saded guilty to the first count of the indictment which ;

tig n evidence of the guilt of the defendants omtrial

here and gives rise to no inference against any defendant

here.“ While it would have been preferable for the court:

merely to note that Sagal had been excused and that the

trial would: Proceed without him, any possible error was

cured by. its: cautionary” ‘instructions, See, e.g., United

United States v. Aronson, 319 F. 2d

4 (2d Cir.); cert. denied, 375 U. 8. 920 (1963) ; United

Ihe sccond le. c, Dare bas been excused by

States y. Crosby, 294 F. 2d 928 (aa Cir. 1961), cert, denied,

368 b. e ee 3

4 oe

Appendix 3 of United States Court: of. Aanials.

a It is argued, 1 that ea committed preindidal |

error in refusing to order the government to produce Clott:

Ae But, the government is not obliged to produce-wit-

sses who are not within its control, see United States

‘Angiolillo, 340 F. 2d 453 (2d Cir.), cert. denied, 380

Rea U. S. 955. (1955) ; its responsibilities are satisfied when 10

se " discloses a potential witness’ name and last known address, .

see D’ Ercole v. United States,. F. 2d —— (2d Cir.

1966), which the government did in this ease, And, after .

obtaining this information the defense did not seek an ad-

journment for the purpose of locating Clott nor is there.

any indication in the record that he was subpoenaed. More-

a over, there was no. prejudicial.error in the court’s charge

that since Clott was equally available to the praca |

and the defense, failure to call him „may not be used.

the basis for an inference for or against A. Boren 7

br for or against any defendant.’’ C., United orga V.

Armone, —— F. 24 —— (2d Cir. 1966). 5 i

We see no more than ‘tharmless error”? in the govern-

ment’s inadvertent failure to turn over F. B. I. Agent a

Me Donald's grand j jury testimony at trial. “When: this over-

sight was discovered: approximately three weeks after tri

the government sent these minutes to Judge Wyatt Who

Forwarded them em to defense counsel. ‘When several counsel

moved for a new trial on the basis ol the belated production

of this transeript, Judge Wyatt denied the motions, observ:

ing that even if certain inconsistencies. between McDonald’s

testimony before the grand jury and at. trial discredited |

the Agent, “tit wouldn't have the ‘slightest effect « on the ver-

flict.” We have examined McDonald’s grand jury testimony c

. are eee that. this reine was. not Aen 3

„„ eee

3 B~Opinion of United States Court of 3

5 MeDonald’s brief testimony at trial was of minimal i impor-

_ tance and did no more than corroborate the evidence of .

Gladstone's meeting with Clott the day before the events

at che Robert ‘Treat Hotel. Although one court has sug-

a geted that the failure to produce prior statements of gov-

ernment witnesses i is ground for reversal even in the ab-

sene of any demonstration of prejudice, Bergman v.

United States, 253 F. 2d 933, 935 (6th Cir. 1958), we have

N declined to reverse where non-production could properly

be ‘classified as th 88 eee see 2 United States v. 5

K ahaner, su —_— at 7s.

. a un 5 N

Having considered those grounds urged kor reversal

which Would affect several or all of the appellants, we pro-

“ceed to the contentions raised by particular. defendants in

their own behalf. WN 2 d a

Aer kr Count oN on 8 Finn TO TestiFy

Addressing the j jury at the 6 of the trial, the govern-

ment attorney stated that in reviewing the evidence for

Dede Jakob's . had n ee which

He bart 10 8 . instance; that William Glad-

stone testifſed uncontradicted that es Gladston told

a 1 idkob on or about July 25

99 225 counsel interrupted, 8 a dbaterence out of |

ity he

e hearing of the jury and moved for a mistrial on the

ground ‘that the ‘Prosecutor had improperly commented

-? 3

8 <6 33

— ee

— — — — — — — — — — 7 — tat

E ‘ Be ret *

* 5 8 *

N ‘ M4 * tA

4 ⁴¹ s 8 8

Avpendia B~Opinion of United Sasse Court of Appeals .

stone's testimony as ‘Concontradieted.??: The judge denied

the motion and immediately admonj ‘the jury to dis-

regard this statement and specifically directed them not

co draw any unfavorable: inferense krom the failure 2

ae Jakob. to testify i in his own behalf. The following day, the — 1

court in its charge repeated these instructions. pes

ee 5 We are not persuaded that the prosecutor’ 8 comment

followed by the court’s immediate curative instructions re-

sulted in reversible’ error. See United States v. ,

supra at 831; United States v. Stromberg, 268 F. 2d 256,

271 (2d Cir. 1 cert. denied, 361. U. 8. 863 (1959). While the

court 8 instructions niay have to some extent called atten-

tion to Jakob’s failure to take the stand, see Stewart v. |

United States, 366 V. S. 1, 10 (1961), counsel for Jakob

did not object when the court indicated its intention to,

deliver them, e ö .

VantaNce Berwaen THE Invroruenr AND | THE Poor

‘ie akob also contends that he was prejudiced by the 8

week difference between the date of overt act 8 as described

in the indictment and the proof at trial. The indietment =)

‘charged ‘that. in furtherance of the conspiracy, Jakob met f

with Gladstone, Markowitz and Sessler on or about aay:

14, 1962. At trial, the government’s evidence showed that

the meeting took place on or about June 20. We do not

regard this minor variance as fatal. See United States. v.

Armone, supra at - —— United States v. Glaee, 3134F, 2 |

757 (2d Cir. 1968). “Although Judge Wyatt informed couth-

sel for J fakob. that he could have any additional time Which

might be i necessary to prove a defense because of the differ

“ ence in dates, no request for a continuance was made.

"eS

8 ie N ö A

222 5

Arran — of, Gite States’ ‘Court of Appeals

Tunes, Dort Jeoranvy | AND Riahr TO Oduitexn “Carus

Parness asserts that bis conviction in n the present case 5

13 5 based on the same conspiracy for which he was con- :

Bs vioted in United States v. Parness, 331 F. 2d 703 (3rd Cir. „

Ps cert. denied; 377 U. S. 993 (1964) and that, therefore, he

noe was plated in jeopardy”? twice for the same crime in vio-

ation of the Fifth Amendment. 3 * 7

It is true that both couvictions were for conspiracy. to

transport stolen securities i in interstate commerce, in viola-

tion of 18 U. S. C. §2314. However, there the resemblance

between the two offenses ends. The New Jersey indictment. .

: charged a conspiracy lasting from June 1961 to J anuary

>. 1962, between Grimmett, Favata, McLaren and Parness to. ity

Be transport securities stolen from Hans and Plate. The ;

present. indictment charged a conspiracy between Dodge,

* Tallman, Pomeranz, Edwards, Sessler, Lowe, Gladstone,

A. Markowitz, Lombardozzi, Carbone, Martinelli, Parness and

others lasting from April 1962 to July 1962, to transport

| stock stolen from Bache & Ca. While it is clear that a

a single conspiracy cannot be split up for the purpose of

' prosecution,” United States v. Cohensi97 F. 2d 26, 29 (3d

Cir. 1952). this case ‘plainly involves a'conspiracy separate

‘ from that for which Parness was convicted i in New Jersey.

see And, while: it Is true that there was mention i in the New

sf Jersey trial that Parness was making arrangements to

ö deliver to “Grimmett i in the future $1, 000,000 of securities,

and that ‘two Persons ‘identified as John and George were

b at a meetir ng in January 1962 ‘when Parness: received

money for a future delivery of $1,000,000 worth of stolen

cars: aye ght dn identified as bist 0 the

„„ e 5

Arpendis B—Opinion of United States: Court of Appeals

source of the stock to be stolen in the future was not iden-

As we observed in United States. v. Kramer, 289. F. 2d rs

9009, 913 (2d Cir. 1961): 1

nee Offenses are not the saine for the purposes of the 5

double jeopardy clause simply because they arise out

of the same general course of criminal conduct; “they

are the same only when Ahe evidence required to

support a conviction upon one of them [the indictment]

would have been sufficient to warrant a conviction upon

the ther.“ : Ma ee

Applying this test, the evidence required to- support a2

conviction upon the New Jersey indietment would not have :

_ warranted a conviction upon the present indictment and

the converse is equally true. The present case closely re-

sembles United States v. Aviles, 274 F. 2d 179, 193.94 (240

. Cir.), cert. denied, 362 U. S. 974, 982 (4960), in which we

rejected a similar claim of double jeopardy, where(the ap-

- - pellants in a narcotics conspiracy case had previously been

convicted of a narcotics’ conspiracy involving different 2

principals, techniques, ‘sources of supply and routes of

distribution. Judge Wyatt carefully analyzed and compared poe

the evidence in the two prosecutions and we are in agree-

ment with his finding that two separate and distinct con-

spiracies were involved. 3 3

Vor are we persuaded by Parness’ argument, resting

primarily upon Massiah: v. United States, 377 U. 8. 201

(96), that his Sixth Amendment rights were ‘violated. ,

by Agent Desena's discussion and negotiation with him in

the Robert Treat Hotel without advising Parness of his

asi ae

ee ee

Ayppendiæ B—Opinion of United States Court of ‘Appeals

A right to counsel. 7 Putting aside for the moment the fact

that no ‘objection on this ground was made to the admis-

Sion of evidence of this conversation, see United States v.

—

Indiviglio, 352 F. 2d 276 (2d Cir. 1965), cert. denied, 383

U. S. 907 (1966), we note that Massiah i is inapposite. . White

Parness was under indictment for an unrelated conspiracy

offense at the time of the meeting at the Robert Treat

Hotel, we do not read Massiah as forever immunizing a

defendant under indictment for a distinct and unrelated

crime from the nofnal techniques employed. by law enforce-

ment officials to investigate other and wholly separate of-

-fenses. The F. B. L.’s plan to usé Agent Desena as an

informant (ald have been completely thwarted if Desena

had been required to disregard his pseudonym and role as

za participant in the scheme and give tlie caveat Parness

suggests. Neither Massiah nor any of the other cases cited

oe} in this connection compel this illogical conclusion.

— 8 Paexyptcrat, 8 ‘Por

While the trial was in progress, a New York newspaper |

published an article which reported Carmine Lombardozzi’s *

arrest ds & scofflaw and referred to him as the. Mafia

King of Wall Street. Appellant John Lombardozzi moved

for a mistrial ‘contending that the adverse publicity con-

cerning Carmine was. likely to affect ‘the jurors’ view of

2 ohn, who was his brother. Judge Wyatt properly denied

this motion. The newspaper article made no mention that 5

Carmine nad a. brother named. John; and the only, oblique’

| leferenee at trial to a brother of John occurred. when 1

was ‘pointed ont, that John performed services for a com-

: Appeals — of United. States Court of Appeals

910 (1962). 0 N. and

pany in which his brother (whose first name was not men:

tioned) was a principal. Thus, there was very little, if ©

any, connection at trial. between John and Carmine and

the judge acted well within his discretion in declining to

poll the jurors to determine if their judgment had been

affected by this news item; indeed, in the circumstances

presented here, such polling ‘might. have eerved only to

underline John’s filial relationship with Carmine. See, e. g,

United States v. Bowe, — F. 2d (2d Cir. 1966);

United States v. Bentvena, supra at 934; United States v.

Feldman, 299 F. 2d 914, 917 ee , cert. abi 370 U. 8.

f 8 .

123 Newiy 3 Evmence ConTENTION

We find no merit in Edwards’ contention that the trial

court erroneously denied his “motions to reopen his case

: a for a new trial on the ground of purported newly dis-

red evidence which allegedly ‘showed that Edwards

could: not have ‘been ee at Places where Pomeranz

testified they had met. ae ares

It was not until e . after Poser completed

testifying that Fdwards made his claim; but, during that

entire period Edwards knew the precise ate and: places

where Pomeranz described the meetings ‘and conversations

which they had. Moréover, although Edwards testified in

his own defense; he never stated that it was geographically ?

9 impossible for him to have been present where Pomeranz

placed him —a claim made on his motion for a new trial.

; Finally, there was no satisfactory showing before the trial

ae —— . es

judge as to reasons why the supposed ‘ ieee es! proof’ 5

„the oonvietions ‘are o affirmed.

— : ‘ a A46

Appendia B—Opinion of United States Court of Appeals

which was allegedly i in the hands of an accountant employed

by Bache & Co. in New York could not have been brought _

to the court’s attention. during trial by the exercise of due

. diligence. In these circumstances, we cannot say that

Judge Wyatt abused his discretion in denying the motion

- to reopen Edwards’ case. See United States v. Houlihan,

332 F. 2d 8 (2d Cir.), cert. denied, 279 U.S. 828 (1964).

Similarly, the district judge cannot be faulted for re-

fusing-a new trial to Edwards on the ground of newly dis-

covered evidence. When Edwards’ réquested additional

time to submit ‘‘the documentary evidence in support of

this motion, Judge Wyatt granted him in. excess of two

weeks to present this material. But, nothing further was

| submitted, and, accordingly, the motion was denied as be-

ing ‘¢¢without merit.“ It is fundamental that a defendant

seeking a new trial under any ‘theory must satisfy the dis-

tyict court that the material asserted to be newly discovered

is in faet such and could not with due diligence have been

discovered before or, at the latest, during the trial. United :

States v. Costello, 255 F. 2d 876, 879 (2d Cir.), cert. denied,

357 U. 8. 937 (1958). See also ‘United States v. Passero, ©

290 F. 2d 238; 244.45 1225 ssid cert. Senta’, 368 U.S. 819

0 1295

We have carefully considered appellant's remaining con-

| tentions and find them Fe merit; ene all of

io. ee cine at this alleged accountant was employe :

ee |

en Saree

Déar J udge ‘Wyatt:

office.

AAT

Portions of Record Constitution

1 nstitutional

Letter to Judge Wyatt | ai: oo

Honorable Inser B, Wyatt wits ‘December 3, 1965

United States District Judge SAY = 2¥ head

United States Courthouse 1 1

Foley Square V. io Galt

New Tork, New 1 10007

Re: Unitea States v. Ba ode et al.

64 Cir 610

— ‘ 8

Subsequent to the ee of the trial in the above- _

captioned case and during the course of the Government’s

preparation for the then éxpected trial against the defend-

ants Lekacos and Lavas, the Government discovered in its

files certain Grand Jury tesimony of F. B. I. Agent Joseph

McDonald. This testimony will be delivered to your cham-

bers next week ra a representative of the U. S. Attorne &

As you are aware, Agent McDonald t testified far the Gov-

ernment at the trial concerning his surveillance of the ac-

tivities of Benjamin Clott.and William Gladstone on July

19, 1962 (R. 1511-39, 1558-61). The Grand Jury testimonyx

of Agent McDonald for the most part (see pages 1-7) in no

- way relates to this surveillance nor does. it even relate to

the activities of any of the defendants who stood trial. Ace-

cordingly, this portion of the minutes i is, of course, not in.

448

Appendiz C—Portions_ of Record Raising Constitutional

Questions Below

- Letter to Judge Wyatt”

consistent with Agent McDonald 8 triaf’t testimony. The only

pages of this testimony which can be said to relate to

Mobonald's trial testimony are certain portions of pages 8

through 11. However, to the extent that they do relate, they

are in no way inconsistent with Agent McDonald’s testi-

mony. See United States v. Zborowski, 271 F. 2d 659 (2d

Cir. 59). Accordingly, it is the Government’s: application

that Your Honor, after making appropriate findings, seal

the Grand Jury testimony as an exhibit for appeal. Cf.

United States v. Kahaner, 317 F. 2d 459 cog) Cir. „ cert.

5 denied, 375 U. S. 836 (1963). N

aS ‘Respectflly yours,

2 26

Roszrt M. MorcenrHav |

United States Attorney

—

449

Appendix O—Porlions of Record m Constitutional =

Questions Belas

Grand Jury Testimony of Agent McDonald

2. Agent McDonald, I remind vou you’ re still under

| pats N ow, let me direct your attention to the 19th of

July, 1962, and ask you first whether or not vou know a

man named Benjamin Clott. A. Les, .

Q. And let me ask you whether or not you conducted

a surveillance of his activities on that day. A. Yes, I did.

Q. Were there any other agents who were conducting a

ce similar surveillance at that time? A. Les, ‘one other agent,

Special Agent Emmett A. Schmitt.

„ approximately what time did the surveillance

begin! And let me say that if your recollection flags,

please make reference to your notes. A. It began shortly . .

before one o’clock and we were. observing the corner- ——

60th Street and Park Avenue. ~ At that point it was ap-

aS dee TT Oe

proximately 12:56 P. M. I observed Benjamin Clott stand

ing on the southeast, corner of that intersection, 60th Street ;

and Park Avenue. He stood there for approximately

twenty minutes. At about 1:17 P.M. he was joined by

another individual, a man approximately forty years of

age, five-eight, a hundred sixty, a hundred-seventy po ds,

dark hair, and he wore horn-rimmed glasses. They poke

for a few minutes there at the intersection and then W. ed

south on Park Avenue to the corner of ögth Street and

Park. There's a building at the northeast corner there —

it's 505 Park Avenue. Phe stranger, the man I’ve just

dpseribed, entered this building and Cilott waited for him

outside. He waited approximately fifteen or twenty

minutes; then the other man came out, joined him. They

went around the corner on 59th Street, s 8 and

: Ayipendi C Portibns of Record Raising Constitutional

; Questions Below Le

* < 4

: Grand Jug Testimony of 5 McDonald

entered a parking lot, and I ‘subsequently observed them

enter a—about a 1953 Cadillac sedan, mid at this point

discontinued the surveillance. AR

2. 1 show yoh what has been , marked Grand Jury

Exhibit No. 1 of the date of February Ath, 1963, and ask

you to tell me whether or not you recognize the person

photographed there. A. Yes, this is the man I described

o you, the man who met Clott at the corner of 60th Street

and Park Avenue, subsequently walked with him down the

street and entered 505 Pax.

2. Now, would you reverse Grand Jury Exhibit No. 1

of February 4th, 63, and tell us w se name. appears on

the rear of that photograph. A. Wi B. Gladstone.

Q. Did there come a time thereafter during the course

of that day, that you had a mesting ¥ with Mr. Clott? A.

Ves. 3

2. Now, what, if ‘eos did he relate to you at that

time as having transpired during the ‘period: of your sur- ö :

veillanee ! A. He related that he met William Gladstone

at the corner, as related, and that he subsequently waited

for him while Gladstone went into 505 Park, and then they

entered Clottꝰs automobile, drove about a block, where they

experienced some mechanical failure “re the car; at that

Point Gladstone left him. . 6

O. Did Clott give you to understand what the pur

pose of Gladstone's visit to 505 Park Avenue was! A.

Yes, he did, ‘said. that Gladstone had visited that location

to obtain à list of stock certificates which he ‘subsequently

turned over to Gott.

— 3 — teansiin 8 * . eee!

= — 1 — 2 : — — — *

ee o Homie of Record Raising’ Constitutional

. f Questions Below. we

| Grand Jury Testimony of Agent McDonald

0. And did Clott turn that list t.of stock certificates over

to the FBI? A. Yes, he did... 12 a Ss

Q. Now, did Clott indicate t 9 you ‘whethag 88 1 cae

given to understand: by Gladstone that the list was pre-

, „ane in Gladstone’ 8 0 writing or in the hand-

iting of someone other: than Gladstone! A. He didn t

ees tell e that. .

Q. Now, this list of securities ‘that was cbtained. by

Gladstone and furnished to Clott, I take it these were the

securities that were to be produced on the next succeeding

day. at the Robert Treat Hotel in N rath New J ersey?

A. That’s right. Z eg .

Q. Do you know, of your own knowledge, whether or

not those securities were, in fact, produced on that ‘day? |

A. From my own knowledge, no.

oo Q: Then by hearsay W of other agents of the

FBI! A. Yes, I do. j

Q. Do you kngw whether or r not an examinatign of those

certificates’ was undertaken to determine, one, whether

they paralleled exactly the list furnished by ‘Gladstone?

A. Of. my own knowledge, I don’t know. a

0. Of hearsay knowledge al, other agents? A. Yes.

Q. And they did parallel. exactly? A. That’s correct.

. Do you also know, either of your own knowledge or

of hearsay information, whether or not the: certificate

numbers were compared against the inventory prepared

by Bache to determine whether or not these were tho

stocks that were stolen in the early Part of. J une, 1962?

A. 3 5 n .

a Mee

| Appendia (Portions of Record Raising Constitutional

| Questions Below

"Memorandum Order of court

_UNITED STATES DISTRICT’ COURT

3 _,Sourmans Drsraicr or New Tonk

64 Cr. 619

_ Unrrep) Stares or America,

oa v. | : , we 3

Rongnr J. Doneg, and others, ate.

Defendants.

J ?

A i : 2.

ö poo.

ey Manana

Wrarz, District Judge, sat

The United States Attorney, by! letter dated Deostiber

3, 1965; has applied to have the Court seal the Grand

Jury testimony’ of Agent MeDonpla „as an exhibit for

appeal”. \

Agent MeDonald testified at the trial. The Court at a

pretrial conference had. directed that copies of the grand

jury testimony of any witness at the trial be given before

eross- examination to counsel for defendants. This, of

course, meant grand j jury testimony relating to the subject

matter of the trial testimony of the witness.

It appears from the letter that Agent McDonald had

. testified before the grand jury but, apparently through

a inadvertence, this was not brought to the attention of the

1 prosetuting staff trying the case at bar. The. grand jury :

| ey, was’ not eer to counsel for ee: After

tte foregoing.

| Appendia €—Portions of Record Raising Constitutional

Questions B

Memorandum Order of Court ore

the trial was concluded, that grand jury testimony was

discovered by the ‘prosecuting staff. The present applica-

X tion followed. case EADS oa” aE Te yg 1

— * have read the gr d jury testimony. Pages MTC. 1-3

inolusive, EJ C. 1 through line’ 15 of EJ 0.5 do not relate

to the subjeèt matter of the trial testimony; the balance

of the grand jury testimony does so relate and if known

at the trial would have been subject to the direction to

turn over to counsel for defendants, whether inconsistent

or not. From my reading of this balance of the grand

jury testimqny, there appear to be inconsistencies. I do

. eneies are of any significance.

not suggest one way or the other ‘whether such inconsist-

The application is granted therefore to the extent that

(a) the United States Attorney is directed to supply

copies to counsel for defendants of pages EJC-5 (begin-

ning at line 16) through EJC-8 and (b) the United States

Attorney is then directed to deliver the grand jury testi-

mony to the Clerk who is directed then to seal it and to

keep it 80 sealed for possible use on any appeal. The

grand jury testimony of. Agent McDonald is being re-

turned to the United States Attorney for contpliance with

‘Datéd: New York, New York 1 e dee N

a December 9, 1965 1 Nef ais ffi

3 *

a ‘Portions of Agent McDonald’s Testimony: » at Trial

: (1511) Joseex. F. McDoxata, calied as a witness by the 7

er, Davie. been first ay rae, testified wd

follows: ＋ÿv i ;

Vine Mr. Schweller: May have a side bar conference!

= The Court: Les.

Oe (At the side bar, out of the hearing of the j jury. 7

Mr. Schweller: For the record, your Honor, I wish

to object to this agent taking the stand inasmuch as

he has been present in court and he hag listened to

the testimony and he knows what has been going on ou

here and he can shape his testimony, I want to make

this for the record, your Honor. ees

The Court: Fine.

- Objection. overruled, .

et (in open court.) 2

i Direct Examination by Mr. Stillman: Se itis

Q. ‘Mr. MeDonald, you are “employed 67 the Federal

Bureau of Investigation? A. Yes, I am.

2. Ii what capacity?” A. I am a special agent.

Q. How eng have yoy been with the Federal (1512)

Eureau of Investigation? A. Fourteen years.

2. Directing your attention to July 19, 1962, were you

engaged j in your official duties on that dayt A. Les, I was.

2. And. specifically directing your attention to the vicinity

of the noon hour, will you tell us where you were? A. I

vas in the New York. office, of the FBI at vance Street and .

Third Avenue, e rh ge og?

25 Q. Did you ses any. there! K Ves. ga Ps.

2. nnen ae, of sade Clott

et,

Appendis C—Portions of. Record Raising c., ?

„„ Questions ‘Bilas

* Portions of Agent MeDonald’ 8 Testtmony at ri

- there?. A. Ves. -I was introduced to an individual by the

name of Buddy Clot.

e. Did there come a time when you et the office? . 4.

. Ves.

9 % Where. did you ay A. I went to the vicinity of 60th

Street and Park Avenue.

. Will you tell us as best you recall, (1513) realy Mes,

Donald, what you observed while you were there! A.

f Shortly before one o’clock I observed Buddy Clott Standing

on the corner, the northeagt corner, of 60th Street and Park

Avenue, At that time he was wearing a white. shirt, dark

pants, no hat. He stood there approximately 20 minutes, at

which time another man approached him. I describe that

man as white, male, about 45 years of age, five-ten, five-

eleven, 175 to 180 pounds. He was wearing a dark wit, a

tie, no hat. *

They greeted one 8 aad then they 3 ie

walk south on Park Avenue. They walked to the entrance

to the building which is address.505 Park Avenue, and that

building i is located at the northeast corner of 59th Street

| and Park Avenue. whinge

The man who had approached Clott 4 the building

and Clott waited’ for him outside. Clott waited approxi-

mately 1 minutes, the man came out and rejoined Clott,

and the two of them walked again south on Park Avenue

. to the intersection of 59th Street, and they turned left, which

is an easterly direction, and they walked about half way

up the block where there is a parking lot located (1514) on

the north side of. 59th Street. Sif entered the pasting | |

Appendiz, C—Portions * Record Raising Constitutional

- Questions Below

J Portions of Agent. Me Donald's 5 Testimony at Trial

d lot, and I’saw. Clott speak to the attendant: there, who then

began to move automobiles around.

And Clott and the other man, the man whom he had met

aut the corner of 60th and Park, remained there i in conversa-

tion.

Ts saw a third man come along and essa to Clott. This

man I:describe ps about 40 years of age. He was five-ten

or so. He was wearing an olive colored suit, as I recall,

that day. He wore horn-rimmed. glasses * dark hair, no

: He spoke briefly to Clott, and then he walked away from

. Clott and the other man; he walked back towards Park.

Avenue, in a westerly direction on 59th Street.

Shortly after he left, I saw Clott and the first individual

that I mentioned enter a 1952 or 1953-Cadillac sedan. Clott

was driving, The other man was the passenger, and they

proceeded out of the parking lot, out the exit which leads

them to 60th Street, and they turned left on 60th Street,

and I didn’t observe them further that day.

I move to strike out the answer as not (1515) binding

upon the defendant Edwards. It is not connected to

i. Friedland: Tf your Honor please, again may

the defendant Edwards. And I ask that your Honor .

remind the j jury about that.

The Court: I think I will leave any further re-

minder to the jury for my instructions at the close

of the case, Mr. Friedland. I have explained the

point to the j jury before. BS think it is not necessary

to repeat it now. I will cover’ that in my charge. me

And the . is overruled. 8

Appendix: C—Portionis of Record Raising Constitutional

Questions Below. 5 le

Portions of Agent Me Donald's Testimon at Trial

Mr. Friedland: If your Honor please, may I. have

a continuing objection, under those circumstances?

The Court: Oh, yes, it will be understood that it

is received as against your client, indeed as against

» all the defendants here on trial, tentatively, subject

to the connection as I have already expiained.

Mr. Schweller: Your Honor, Is the answer finished?

Is the answer to thé last question finished now7 I

object on the ground-g-- 2

I be Court: I would assume

Pst Mr. Stillman: As far as I know, .

Ml. Schweller: I object, your Honor

(1516) The Court: Wait just a moment.

Had you completed your direct examination

Mr. Stillman: I have another question or two.

The Court: All right. 112 E

Mr. Schweller: Subject to connection, I object. I

don’t see the relevance of this testimony. 1

The Court: But we have to proceed one Step ata

time. And if at the end of the government's case

there isn’t any connection of these events that the

agent has narrated, I will entertain a motion to

strike. Yas fois: Ban

Mr. Schweller: Thank you, your Honor.

‘The Court: All right.

By Mr. Stillman: |

. During the course of this trial, Agent McDonald, have

you had occasion to see the first man that Clott met, and

—

dee

Appendiw' C Portions of Record Raising. Constitutional

_— Below .

Portions of Agent McDonald’ 8 Testimony at Trial.

Who subsequently went away in the car with him, in this

courtroom? A. Yes, I have. a

When! A. Just a few minutes ago.

* Where: was he seated!? (1517) A. nen was sesited-in

the same seat that I am sitting i in now. hive

Pies —— Gladstone? A. That's correct.

Mr. Stillman: I ‘have no further questions, your

Honor.

_ The Court: Mr. Friedland?

Cross Examination by Mr. Friedland:

<>}

0. Agent MeDonald, i is t the first time that you knew

that Mr. Gladstone was the first man that you saw, this *

with Mr. Clott? |

Mr. Stillman: Can I have the question read?

| A, I don’t understand your question. .

A Isn't itd fact that you knew that it was Mr. Gladstone

much before your — to court 1 8 and ee

A. ‘Yes. 4

Q. When did you ‘first find out 1 was Gladstone who Was

the unknown man you referred to? A ind be > afternoon of

July 19, 1962.

Q. In other words, the same day that you dictated your

f report vou found out that Gladstone was the unknown man?

A. You would have to let me aie the report.

i „*** 2 „

Fa q

4.5

e Codiiment’ oa Petitioner's Failure to Testify

f Goveinment 8 Summatiox Se

(3059) Mr. Stillman: Thank you. |

e .

(3062) 2 * * 48 1 8 Ee des

When Mr. Gelb summed up he said that he was going to 7

address himself to the highlights and he was going to skip

the details: Well, I submit to. you what he very nicely

7 skipped were the incriminating details, sa sc showing

Max Jakob’s knowing Participation in this scheme. He

forgot to mention, for instance, that William Gladstone

testified, uncontradicted, that a anion, told Jakob on

or about July 2nd f N .

Mr. Gelb: May I approach the sidebar, your Honor!

The Court: Ves. * 5 N

(At the sidebar out of the hearing of the jury:)

; ; J

BP rs

— * ; a

_ Mr. Gelb: I move for the declaration of a mistrial on the

ade reference to the failure of the defen-

_ dant Jakob to take the stand. :

The Court: I ain going to deny the motion, but I will

explain it to the jury. I don’t think, (3063) Mr. Stillman ,

that you should talk about the fakt that he was uncontra-.

dieted about something dealing with Mr. Jakob. ss

Mr. Stillman: Very well, sir. | :

Mr. Gelb: Exception.

(In open court: ) .

The Court: Members of the jury, tomorrow, when I give :

you my instructions, I will have occasion to tell you. a de>.

—

| A-60

cs n o. Portiong of Record Raising Constitutional

5 Questions Belo a

Comment 6 on Petitionér’ s Failure to “Testify

fendant has the absolute right not to testify that you

are not to draw any inference unfavorable to the'defendant

- s failure to testify. Now if Mr. ‘Stillman’s suggestion

signed—and I don’t think it was; I eert ir

ees ie was unintentional—to ask you for an inference unfavor-

able to Mr. Jakob because the testimony to which he re-

ferred of Mr. Gladstone was uncontradicted, I will have to

tell you to disregard it and to draw no such inference. We

5 cover it tomorrow in our instructions. That is enough

in present. ,

. —— eras

2 1

T0000 ² AAA V ⁵˙ p OCT OU Ao SA! APS Sst Bang aang On Wyse RW A Pi I NE Be Oe

* * — i — iin. * = — —

ot — — — — —— ~ 1— —

Judgments of the Courts F

UNITED STATES COURT OF APPEALS

Fon rae Szconp Cmovrr =

At a Stated Term of the United. States Court of Appedis,

in and for the Second Cirenit, held at the United States

Courthouse in the City of New York, on the twelfth day of

September, one thousand nine hũndred and sixty-six.

Present: 3 12 Gd :

3 Hon. Srerry R. Warermay,

How. LRONARD P. Moon,

Hox. Irvine R. Kavrmay, F ‘

3 Cirouit Judges.

<b Pon Uhited States of America, 1 r

et * — Plaintiff-Appellee,

3 :

Robert J. Dodge, et al,

—

5 .

is Abaat | ii Dtiefendanta

Robert Edwards, a/k/a Edward Schonberger, are

Milton Parness, Max J akob, John J. Lombardozzi,

| Defendants: Appellants.

) Appeal. from the United States District Court for the

Southern District of New York.

This cause came on to be heard on the transéript of record

from the United States Distriet Court forsthe Southern Dis-

_ trict of New York, and was argued by counsel, .

Ox CoxsmRRATION Wuereor, it is now hereby ordered, ad-

Judged, and decreed that the judgments of Said. District

Court be, and they hereby are affirmed. e

Es Clerk

Appendix D—Judgiments st the Courts Below. ,

(U. S. A. v. Jakob)

‘UNITED STATES DISTRICT COURT.

Fon THE SourHERN District OF New Von N

No. 64 Cr. 619

—

. Uwsrrep States or ARC A

Max JAkon

On this 16th 5 of . 1965, came e the attorney

for the government and: the defendant appeared in person

and by counsel. |

Ir te ApsupcEp that the defendant has been convicted

— v upon his plea of not guilty and a verdiet of guilty by a jury

of the offense of unlawfully, wilfully and knowingly trans-

porting and causing to be transported in jnterstate com-

me „stolen securities of a value of more than $5,000

lniowing the same to have been stolen, converted and eC

by fraud and conspiracy : so to do. (Title 18, U. S. Code,

Sections 2314, 2 and 37 1) as charged i in counts 1 and 2

3 and

the court having asked the. e hr be has any- |

thing to say why, judgment should not be pronounced, and

. no-sufficient cause to the contrary 8 shown or e

to = Court,

——

—

Appendiz D—Judgments of the Courts Below |

Ir Is Anita that the defendant is guilty i as charged

and convicted. :

— II Fig Apsubéap that the defendant i is eres committed

to the custody, of the Attorney General or his authorized:

: representative. for imprisonment for a period of Oxx (1)

Year and Ong (1) Day on each of counts 1 and 2 to run

concurrently with each other, and Finep $10,000. on n cach of

counts 1 and 2.

Toran Fines ar. $20,000, to be paid or defendant to stand

committed until the fires are paid or he is otherwise dis-

charged according to law. 3

Bail pending appeal i is fixed i in the sum n of $15, 000.

Defendant released i in custody of his attorney until 10:00

A. M. December 17, 1965 to post bail pending appeal.

Execution of judgment i is stayed pending appeal.

Ir Is Oxpzrzp that the Clerk deliver a certified copy rel

this judgment and commitment to the United States. Mar-

i | shal or other qualified officer and that the copy serve as the

commitment’ of the defendant. Seis ar

| Inzer 3 ‘

United States District J udge

James E. Valeche ö

11 a2 a Clerk

APPENDIX E

a Cable Opinions ,

0 »

he. Sidney Benoman, George Goldenberg,

S | - Bmanuel Weijes and Phillip Weiss,

„ e Bere =

999 :

Ur States of America,

(NS :

Nos. 13193-13196.

Sixth Gitcuit.

March 12, 1958.

Rehearing Denied April 23, 1958.

* * * 2 „

Before McAuusrée and 3 Cireuit J nie and ö

Joxxs, District Judge.

Srzwanr, Cireuit Judge f

‘Tried by jury in the district court, the 3 were

convicted of violating Title 18,. U.S. C. A. §§ 2314 and 2315,

by receiving and transporting i in interstate commerce goods

‘which they knew had been stolen, feloniously converted or

taken: by fraud, and of conspiracy to violate the said crim-

inal statutes. Upon these consolidated appeals many errors

are claimed in the trial court’s admission and exclusion

of evidence, instructions to the j jury, and other nen ;

Anpendir E. -Oonſlioting Opinions

Bergman p. U.S.A., 253 F. 2 933

Two principal ‘contentions, | Gwever, emerge from the

. briefs and oral argument. First, it is claimed that the proof

Pas insufficient to show that the goods which were received

and transported had been obtained by any of the untawful

means referred to in the criminal statutes in question. Sec:

ondly, it is contended that in the light of Jencks v. United

States, 1957, 353 US. 657, 77 S. Ot. 1007, 1 L. Ed. 2d 1103,

the district eourt erred in not ‘permitting defense counsel

to inspect prior statements made to the Federal. Bureau of

Invéstigation by witnesses who testified for the government.

_ The goods which the appellants were charged with receiv-

ing and transporting were automobile parts that in 1952 had

been shipped in four caer loads from Willys-Overland

Motors, Inc., to the appellant Phillip Weiss in Toledo, Ohio.

: sp for the reasons stated below we have concluded that

e judgments must be set.aside, it is unnecessary to’émbark-

upon a review of the conflicting evidence as to {Ke circum-

stahces under whichthe god is“in—question: le the Willys:

Overland plant: /Snffice it to say ‘that while the appellants °

are còyrect inf their contention that the evidence did not

‘show that a bmmon law larceny had been committed, such

a showing was not necessary to sustai da conviction. United

States v. De Normand, 2 Cir., 1945, /149 F. 2d 622; United

States v. Handler, 2 Cir., 1944, 142 F. dd 351.

Tue issue as fowhether the-goods were obtained hy one

of the unlawful methods of acquisition’ referred to in the

statutes is not to be decided upon the basis of technical

common law definitions. See United States v. Turley, 1957,

352 U. S. 407, 77. S. Ot. 307, 1 L. Bd. 2d. 430; United States

v. De Normand, supra; United States v. Handler, supra.

5 States, 1957, 364 U. 8. 298, 332

‘>

44686

Appendir E- Oonſiotiug Opinions

‘Derymon v. U.S. A., 253 F ad 936

While, of course, we cannot know whetker the evidence to be

produced at a new trial will be sufficient to support con-

. victions, there is enough i in the present record to prevent a

determination at this time that any of the appellants are

entitled to ¢lirected verdicts of acquittal. Cf. Yates v. United

77 8. Ct. 1064, 1 L. Ed. ;

2d 1356. pet |

We come then’ to the gro upon which we have con-

cluded that a new trial is req ired. Six employees of Wil- .

lys-Overland tes on ef. the government. The

general subject of \their testimo related to the manner in

which Phillip Weis secured possession of. thé automo-

_ bile parts—a subject which was a central i issue in the case. ?

Five of these six witnesses said that they had given state-

ments to the F. B. I. in 1952 or early in 1953 covering the

subject matter of their testimony. Defense counsel made a

timely demand for the production of each of the five state-

‘ments for use in cross examination.

In a conscientious effort to follow the law as it then ap-

| peared to be, the trial adopted the following principles

in passing upon counse!*S requests for the witnesses’ prior

statements: 1. If the witness had used the statement to re-

fresh his recollection, the statement would be made avail-

able to defense counsel, 2. If the witness had not used the

statement to refresh his recollection, the court would ex-

amine the statement to determine whether its contents were

“inconsistent with the witness’s testimony. 3. If the court

determined that the statement was inconsistent with the

witness’s testimony the statement would be made available

Appendic E—Conflicting Opinions -

Bergwlan v. U. S. A., 253 F. 2d 933 3

to defense counsel, 4. If the eourt found that the statement

was not inconsistent-with the witness’s testimony the state-

ment would not be made available to defense counsel.

Applying these. standards, the court made available to a

the defense the prior statements of three of the government

vitnesses and a substantial part of the statement of a fourth.

But the prior statement of one witness, Chitwood, was not

turned over to defense counsel; - VP

Several months after the judgments of conviction were

entered, the Supreme Court decided J encks v. United States,

1957, 353 U. S. 657, 77 S. Ct. 1007, 1 L. Ed. 2 1103. In that

case the Court expressly disapprovéd the procedure adopted

by the district court here. 353 U. S. at page 669, 77 S. Ct.

at page 1018 In the light of the Jencks decision, the failure

of the district court to 2 Chitwood’s prior statement

available to the defense requires that the judgments be set

aside.’ We reach this conclusion with reluctance in view of

the likelihood that the failure to-make Chitwood’s statement

; available actually worked .no prejudice to the defendant’, .

and in view of, the generally conscientious and fair conduct -

of the long and complicated trial by the district judge.

Upon a second trial the recently enacted statute imple-

menting the rule of the Jencks case will govern the proce-

_ + dure to be followed. 18 U. S. O. A. § 3500; Lohman v. United

States, 6 Cir., 1958, 251 F. 2d 951.

on „

The fact that Chitwood’s statement may have been unsigned is

immaterial, if it was „ or approved by him,“

or, if orally made, it was a su i un oontemporane-

dus recording. Jencks v. United States, 353 U.S. at page 668,

77 S.Ct. at page 1013 18 U.S. C. A. § 3500, Rig

a’

) Appendin EConificting Opinions

4% ea Bergman v. USA, 253 F. 2d 933

The judgments are vacated and the case venanded to the

district court fora new trial. * 8

5 i on Petition for Rehearing’ a: .

V Per Conan. . 3 8

\Upon ‘iat hide of the petition for rehearing, we are

of opinion that it is not proper for this court to determine

whether the appellants were prejudiced. by failuye to make

‘available. the prior statement of a witness, any more than

it would be — for the trial court to determine whether

a prior stateinent of a witness should be turned over to

defense counsel on the basis of whether the statement is

inconsistent with the-witness” 8 testimony i in open court.

The petition for rehearing seems to imply that the Jencks -

case removed this function ‘from the district court only to

rer it within the province of the. Court of Appeals. We a

are not disposed to adopt that view and e the .

ie "petition for rehearing i is denied. 8

a toe — . . Be Pes

—

Appendix E—Conflicting Opinions

U.S. A. v. Prince, 264 F. 2d 880

Uxrrgb Srarzs of America

James William Px cn, Appellant. i

No. 12785

United States Court of Appeals

r OO oe

_ Argued Feb. 18, 1959.

_ Decided March 18, 1959.

8 € * * . * 5 . : ;

Before Bices, Chief Judge, and Gooprice and McLaven-

uN, Circuit Judges. ies. 7 .

: McLaveutin, Circuit Judge. 3

Appellant was convicted for selling and facilitating the

concealment and. sale of narcotic drugs en or about April

10, 1958, in violation of 21 P. S. C. 8174. He was sentenced

as a second offender to ten years imprisonment under the

mandatory provisions of Section 174. s |

His first point concerns the governments alleged failure

to comply with the trial court’s direetion to produce state-

ments of a government agent in accordance with 18 U.S.C.

83500. Agent Hill of the Federal Bureau of Narcotics was

a trial witness for the governinent. On direct examination

he testifled that on April 10, 1958 he arranged by telephone

to purchase three spoons of heroin from Prince for $60 and

to send Randolph J ackson, a special government employee

and a friend of Prince, to the latter with the money for the

A-70

Appendix B*-Conflicting Opinions

U. S.A. v. Prince, 264 F. 2d 850

consummated. At the opening . eross- examination Mr.

Hill was questioned and answered as follows:

„. Mr. Hill, did you make written reports per-

taining to the subject matter you have just testified?

A. I have a written report, for April 10th, the ac-

‘tual date of the sale.

„Mr. MeVay: Your Honor, I request those re-

ports?

The Court: Do you have it there?

Mr. Shannon: Yes.

„Mr. McVay: Your Honor, may Ihave a recess

so that I will have time to look at these reports?

„The Court: How long are they, Mr. Shannon?

„Mr. Shannon: Approximately a page and a

half. You can read it in a couple of minutes I

imagine.

“The Court: Go abend. We will let you take

time to read it, Mr. McVay. *

As the result of the above a report by Mr. ‘Hill of his ac-

tivities on April 10, 1958 with reference to Prince was pro-

duced and furnished defensé counsel. On redirect examina-

tion Mr. Hill was asked if he had talked with Prince after

April 10th. He said he had and he was requested to relate

tthe conversation. This was objected to. The court asked

the district attorney its purpose. ‘and the reply was ‘‘The

purpose of it is to show the subsequent similar conduct.

The court allowed the evidence over further objection. 1

1 Where evidence 1 t acts or conduct is allowed to show

knowledge, wilfulness and intent as in this instance, the fact

that they occurred subsequent to the crime in the indict- .

ment is no bar to admissibility of the evidence. United States v.

. 27, 1989. Cir. 1958, 262 F. 2d sides 576, rehearing d denied *

drug. According to the government evidence that sale was

Appendix E—Conflicting Opinions

V.. A. v. Prince, 264 F. 2d 630

\ 5 ees 3 3

Mr. Hill then told that on April 28, 1958 he had talked with

William E. J ackon, referred to in the record as a drug seller,

and Prince together. Ho ie 24% —

I spoke to them. I told them that I was looking

to buy more heroin. William E. J ackson turned to

the defendant and asked the defendant did he want

to take careſof me. The defendant said, ‘I am still

suspicious that he is a narcotic agent. I want to

sell to him but I don’t want to put it in his hands al-

though I want the money.’ William Jackson said, If

you don’t want to take care of him I will.’ Then Wil.

liam Jackson and J left the Snack Shop.“

There actually had been a written report of the April

28th conversation and related incidents by Agent Hill. It

was produced at the hearing on defendant 's motion to ap-

peal in forma pauperis. The district judge in his opinion

with respect to that motion said: ‘It is true that upon de-

kense counsel’s request, pursug t to 18 U.S. C. A Sec. 3500,

only one of two reports covering matters-dbout which nar-

cotics agent Hill had testified was delivered to kim.“ (Em-

phasis supplied). ham |

The statute governing the matter, 18 U.S.C. § 3500(b),

provides in part: „After a witness called by the United

States has testified on direct examination, the court shall,

on motion of the deféndant, order the United States to pro-

duce any statement (as hereinafter defined) of the witness

in the possession of the United States which relates to the

subject matter as to which the witness has testifled.“ This

language is hardly ambiguous and the legislative history of

— 5 * 7 ‘o

Appendix E—Conflicting Opinions

U.S.A, v. Prince, 264 F. 2d 850

betten 3500 * no doubt as to its intent. Senate Re-

port No. 981 states: the proposed legislation * * * |

reaffirms the decision of the Supreme Court in its holding

that a defendant on trial i im a criminal prosecution is en-

titled , to relevant and competent reports and statements

in th ssession of the Government touching the events and

activifj S as ‘to which a. Government witness has testified

at the trial ** U. 8. Code Congressional and Adminis-

trative News 1947, p. 1861. *

The district judge, though conceding the richt of the de-

fense to the second report, thought that i ae 54 con-

es er have produced a different verdict.’?

In our view the mandate of the statute itself makes the

omission substantial. It is not the function of the district

court or ourselves to determine whether the appellant

was prejudiced by failute to make available the relevant

" portions ‘of the prior report of the witness. Bergman v.

United States, 6 Cir.; 1958, 253 F. 2d 933, 935, 936. In Loh-

man v. Uniteg States, 6 Cir., 1958, 251 F. 2d 951, 953, the

factual situation was much the same as here. A written

J port to the Federal Bureau of Investigation had been

made by the witness coneernii g matters to which he had

testified, The request of the defense for the report was

denied by the trial judge. Mr. Justice Stewart, chen Judge

Stewart, who ‘also wrote the Bergman opinion, held for f

the court that this was clearly prejudicial érror’’, And

see Johnston v. “United e, 10 Cir., 1958, 260 F. “ 75

B45, 347.

Appellant also . serious error in “the 33 of

the court to instruct the jury that if the defendant was a

dictment. .

of either Hill or Randolph Jackson in the purchase of the

heroin on April 10th. Admittedly if that were the fact he

of narcotics and acting for him as a procuring agent. If

seller and could not be convieted of a sale under the indict- * |

« concluded, the court asked counsel if they had any further

95 3

Appendiz E—Conflicting- Opinions

U.S. A. v. Prince, 264 F. 2d 850.

procuring agent he could not be convicted under the in-

One of the defenses was that Prince had acted as agent

could not have been convicted under the indictment. ' The

defense therefore presented the following request te charge:

If you believe that the Federal Agent (Charles

G. Hill) or the informer, who acted under instruc-

tions and authority of agents of the Federal Bureau

of Narcotics, asked the defendant to get some heroin

‘for him and thereupon the defendant 0e to

act in the prospective purchaser's behalf rathe than

his own, and in so doing purchased the drug from

a third person with whom he was not. associated

in selling, and thereafter delivered it to the bu er,

the defendant would not be a seller and could not

be convicted under this indictment”, 4 ae

The court charged: ‘In determining whether the defen-

dant was a seller af narcotics, you must keep in mind the

difference between dealing with a purchaser as a seller

you find that the ‘defendant undertook to act in behalf of

a prospective purchaser rather than in his ‘own behalf,

and in so doing purchased ‘the drug from a third person

with whom he was not associated in selling and thereafter

delivered it to the buyer, the defendant would not be a

ment.’’( Emphasis supplied.) After the charge had been

—

474

Appendix — Opinions ist ea Vg

U. 8.4. v. Prince, 264 F. 2d 850

25 requests to charge. The defense attorney said, I. would

request an instruction to the effect if he was a procuring

agent he is not guilty.“ The court said, “You have that

instruction.“ Counsel replied, He is not guilty under

| facilitating or anything else.“ The court, saying Tou

have that. That is clearly in there“, sent the jury to the

jury room to deliberate upon its verdict. a

Under the facts the requested instruction was Proper.

United States v. Sawyer, 3 Cir., 1954, 210 F. 2d 169, 170; \

Adams v. United States, 5 Cir., 1955, 220 F. 2d 297, 298, 299;

_ United States v. Dornblut, 2 Cir., 1958, 261 F. 2d 949, 951.

It was apparently so accepted by the court but unfortu-

nately the latter mistakenly thought the charge had cov-

ered it. As given, the instruction did not: eliminate a ver-

diet of guilty for facilitating the sale in the event Prince

was found to have merely acted as agent for Hill. or J ack-

son in purchasing the drug. The difference to Prince in

the instruction could have been the difference between win-

ning and losing the case. .

Appellant’s final point is that the admission. of prior simi-

lar offenses. was erroneous. The evidence was offered to

show knowledge, wilfulness and intent and we admissible.

The rule governing it is tersely | by Judge Good-

rich in United States: v. Stirone, upr [262 F. 2d 576],

„Evidence of other offenses may be received if relevant

: for any purpose other than to show a mere propensity or

1 disposition on the _ of the defendant to commit the

crime.“

ae The jadeuient of the district court vill be reversed and

„ me cause remanded for a new trial.

75 *

Appendig E—Conflicting Opinions Re

U.S. A. v. Sheer, 278 F. 2d 66 ö

Uxrrzb Srarxs of America, :

Plaintiff-Appellee,

| REE eine

Robert Suzrr, Gordon Foster and Thomas

Jaekson, Defendants-Appellants.

„Vos. 12826.12828.

ee Court of Appeals

6 i Seventh Circuit.

May 10, 1960.

Before Dorrr, ScHNACKENBERG and Casrix, Circuit

Judges. 5 d |

. SCHNACKENBERG, Circuit Judge. * aa

Robert Sheer, Gordon Foster and Thomas Jackson, de-

_ fendants, appeal from judgments of conviction in the dis- |

trict court entered on jury verdicts, ‘Sheer was sentenced

to concurrent five year terms of imprisonment under counts

I, II, V and IX, to concurrent three year terms under counts

IV and VI, and was fined $5,000 and costs under count V.

Foster was sentenced to concurrent five year terms of im-

prisonment under counts VII and IX and was fined $5,000

and costs under count IX: Jackson was ‘sentenced to one

ear imprisonment and costs under coun of the indict.

ment, and under count IX his sentence was suspended and

he was placed on probation. . oe ö e

As stafed by defendants, the errors relied upon arise out

A-76 , *

. Appendiz E—Conflcting Opinions

: U.S.A. v. Sheer, 278 F. 2d 66

a =

of the overruling of each defendant’s motion for judgment

of acquittal at the close of the entire case, the improper

admission of evidence on behalf of the government, the re-

fusal to limit statements attributed to one defendant to the

declarant, the refusal to grant a severance or a mistrial as

to Foster and Sheer after admitting into evidence against -

Jackson a statement a attributed to the refusal to allow

defendants to have certain internal r revenue reports for the

purpose of cross-examining government agents, the refusal

to allow defendants, to have the grand jury testimony of cer-

tain witnesses for the purpose of cross-examination, the giv-

ing of erroneous instructions, the failure to give certain in-

_ structions offered by defendants, the excessive ‘sentences, the

' failure of the court reporter to transcribe the entire pro-

ceedings, the improper selection of the grand jury and the

overruling of motions to quash two search warrants and to

suppress the evidence seized under those warrants.

The making of false statements in a matter within the

jurisdiction of the United States Treasury Department was

charged against Sheer in counts I, II, and IV, against Foster

in count VII and against Jackson in count VIII. Sheer was

therein charged with falsely statjng on March 26, 1957, May

5, 1957 and July 3, 1956, that he had no employee er agent

accepting wagers on his behalf. Foster was accused of

falsely stating on May 6, 1957, to Special Agents conducting

a criminal investigation that he never accepted wagers, and

that he had no business interest in the Roberts Motel and

Bar. Jackson was accused of making a statement on May 6,

1957, that he did not accept wagers. Count V charged that

on May 29, 1957, Sheer attempted to evade 9 of

. * — —— D mae 0 one 2 a

_ A-77

‘Appendix E—Conflicting Opinions

U.S.A. v. Bho, BEE, 2d 65 ~

wagering excise taxes due for April, 1957, by filing a wagir-

ing excise tax return listing the gross wagers accepted by

_ as $1,851.00 and the tax as $181.50, when he knew the

gross amount of wagers S accept by him“ during that

month was $2,365.00 and more and the tax due was 6236.50

_and more. Count VI charged Sheer with subscribing and

filing a tax return application for registry-wagering, on J uly

3, 1956, falsely declaring under the penalties of /perjury

that it was true, correct and complete when it did not de- .

scribe his place of business, and stated he did not engage

any employee or agents in receiving wagers in his behalf,

Count IX charged that, on or about November i, 1955, or

prior thereto and continuing up to and including the indict-

ment date (July 25, 1957), defendants did unlawfully con-

spire to defraud the United States in its administration of

the Internal Revenue Laws and to violate Sections 7201,

7203, 7206, 4411, 4412, 4901, 7262 of Title 2 and Section .

1001 of Title 18 U. S. C. The indictment then alleged certain

matters as a part of the conspiracy. It charged as overt acts

each of the other counts 5 the indictment snd ores addi-

tional overt acts.

As above stated, counts I, VII and vIn a respec-

tively that defendants Sheer, Foster and Jackson know-

ingly made a false and fraudulent statement of a material

fact to Special Agents of the Internal Revenue Service on

May 6, 1957.

The statate ae to be violated, 18 v. 8. 0. A .

provides: — 4

“Whoever, i in any matter within the jurisdiction of 2

= department or agency of the United States 8825

478

Appendix E—Conflicting Opinions

U.S.A. v. Sheer, 278 F. ad 65 |

ingly and willfally falsifies, Somali or covers up wy

any trick, scheme, or device a material fact, or makes

any false, fictitious or fraudulent statements or rep-

resentations, or makes,or uses any false writing or

document knowing the same to contain any false,

', fictitious or fraudulent statement or entry, shall be

-. fined not more than $10,000 or se geeks not more

5 than five years, or both. d

Upon the trial, all of the principal government witnesses

were agents of the government. After the direct examina-

tion of each of these witnesses, defendants emanded the

richt to inspect the reports which the agents made. De-

\fendants were given statements of the agents\which were

made contemporaneously’ with the events reported’ but,

under the court’s ruling they were denied other statements.

It was the government’s position that ‘‘we will: supply

memoranda taken down in- questioning defendants at. the

time of the questioning that took place but we will not show

8 the Internal Revenue reports relating to such things or such

interviews with the defendants other than verbatim state-

ments reported“ (Emphasis supplied.) The court’s view

was that the. de ts will be entitled to copies of writ-

ten statemer made nnn. with the inter-

views. N

After Agent William Edwards testified as to a raid at the

Roberts Motel, defendants made a request for his report of

what. took place during the raid, which request was denied.

Agent Donald Yerly | testified i in substance that he inspected .

755 > However;’a’ statement Agent Glen Jaan was not produced

5 “because it had been lost. by J

A-79

a Appendix E—Conflicting ‘Opinions 8

. S.A. v. Sheer, 278 F. 2d 65

the building at 929% Missouri Avenue on May 7, 1957, and

that he observed smoke in room 5 as well as ashes in a

wastebasket which was warm. Across the street was a car -

in which he had seen Sheer riding? On the same day, after

he returned to the office, Yerly made a memorandum report

of what he had seen. A request by defendant for production

of this report was denied by the court, without stating the

ground for its ruling.” eat ar 0

„111 The demand for these reports was made for the pur-

pose of impeaching government agents Edwards and Yerly

who had completed their testimany on direct examination.

Palermo v. United States, 360 U.S, 343, 345, 79 S. Ct. 1217,

3 L. Ed. 2d 1287. Defendants rely upon the Jencks Act, 18

U.S.C.A. § 3500, which, provides: 1 uy

„3500. Demands for production of statements

and reports of witnesses ~ Ses rt ang ,

„(a) In any criminal prosecution brought by the

United States, no statement or report in the posses-

sion of the United States which was made by a Gov-

“ ernment witness or prospective Government witness

5 . (other than the defendant) to an agent of the Govern-

ment shall be the subject of subpena, discovery, or

inspection until said witness has testified on direct

examination in the tfial of the case. |

While it is not clear from the record that the district court denied.

production of the reports of Edwards and Yerly because they,

were not made contemporaneously with the events rewounted

therein, and while the evidence indicates rather strongly that

these reports were made so soon after those events that were

as a matter of fact contemporaneous therewith, we are for the

purpose of this case accepting the government’s contention that

these statements were “not made contemporaneously with the in-

terview on the subject matter thereof.

ra ered 40

= | , re-, E-~Conflicting Opinions Dee 3

9.8.4. v. Sheer, ars F. d 4s „

0 (b) Afr a witness called by the United States

haas testified on direct examination, the-court shall,

on motion of the defendant, order the United States

to produce any statement ¢ as hereinafter. defined) of . .

the witness in the possession of the United States:

Which relates to the subject’ matter as 8 to which the

witness has testified. ae Ale

‘

. *

— * *

* * , ge,

5 8 The seins statement’, as used i in subsections — +. ° |

b), (e), and (d) of this section in relation to any

. ' +” witness called by. the United States, means—

+i. Do el a written ‘statement made by said witness 5

— eA ‘signed’ or otherwise adopted or approved by . 45

2 him; W . „

i (2) as stenographic, mechanical, ehéctrical, or

5 bother recording, or a transcription thereof, which is

a a substantially verbatim recital of an oral statement

made by said witness to an agent of the Government

and, recorded contem 3 with the W of

2 oral statement. '

— salt a

We have ‘held that this Act N to government agents

“who. testify for the prosecution in federal criminal cases.

United States v. Berry, 7 Cir. 1960, 277 F. 2d 826.

2] We find. that the term “statement” as used „in the

: Act applies to the reports made by the agents in this case.

A report is Uefined as a statement in writing of proceed-

_ ings and facts exhibited by an or to his rg fl

_ Webster 8 Dictionary. he

— Neither the wording ok the Ae nor its legislative history

. —

ee any intention of . qorotument agents

A81

Avpesdir E-Conflicting Opinions

.S. A. v. Sheer, 278 F. 2d 65

ernment at a trial. If, subject to the safeguards set forth

purpose of the law in securing a fair trial is more nearly

attained. If an agent’s written reports as to matters about

which he has testified on direct examination are at variance

with his testimony, a well-established ground for impeach-

ment exists. 98 C.J.S. Witnesses 6 482, P- 365. Of course,

it is necessary that a foundation for impeachment first be

laid by the cross-examiner. 98 C.. 8. Witnesses 9 599, p.

589. Accordingly, in the case at bar, after Edwards and

Yerly, two ‘of the principal witnesses for the government,

had each completed his direct testimony, a demand was

made by defense counsel for production of their reports

but an objection thereto was sustained by the district court.

As to the contention of the government, which we are as-

suming has a factual basis in the record (see footnote 2,

ante), that these reports were not made contemporaneously

their Jnakjng was not germane to their use as a basis for

§ 3500(e) (2)...

The government contends that defendants are in no Posi-

tion to object to,the court’s rulings in this respect because

they did not move to have the questioned statements marked

as exhibits f. consideration‘ on appeal. They add that

7 *

from impeachment when they become witnesses for the gov-

in the Act, thé defense is permitted to test the credibility —

of a government agent when he appears as a witness, the

with the events therein referred to, we hold that the time of

~ impeaehment. They were statements made by the witnesses .

Verly and Edwards as referred to in 93500 (e) (1). They

were not statements such as those referred to in

482

Appendir E—Conflicting Opinions

U.S.A. v: Sheer, 278 F. 2d 65 .

his should have been Aae for if the defense is et preju-

diced by the withholding the error is harmless.” However,

it affirmatively appears in the record that defense counsel

inquired as to whether the reports were present in the court-

room or available and.the response was in the negative.

Upon oral argument it was stated to this court, and not

denied, that these documents were not physically in the

courtroom at the time of the proceedings referred to. Just

how the defense attorney could have had the absent state-

ments marked.as exhibits by the court reporter does not

appear. ~

Substantial error was committed in the ponproguetion of

the reports of Edwards and Yerly for use by defendants

in their defense in the district court. It is not proper for

this court to détermine whether defendants were prajudiced

by failure to make available to them the prior statements of

Yerly and Edwards, any more than it- would be proper for

the trial court to determine whether a prior ‘statement of a |

_ witness should be turned over to defense counsel on the

ness’ testimony in open court. Bergman v. United States,

6 Cir., 253 F. 2d 933, 936. A reversal of the judgment

is required. A remandment for a new trial will Ke ordered.

In view of that disposition of the appeal, it becomes

basis of whether the statement is inconsistent with the wit-⸗

~ unnecessary to consider the other grounds urged by *

ants in this court. *

Reversed and remanded for a new trial.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.