# Appendix — Jakob v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1967
- **Citation:** 386 U.S. 908

## Text

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

4

A2

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

*

—

ae

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

\ &

¢

*

12
— 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-

2

*

AS

Appendix A—Constitutional Provisions. and
Statutes Involved

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

N

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

Ce
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 &

bg

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

*
vv

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.

3

4-10

and from New Vork City. “ De : 3 E

to and at trial, the
ment’s motion.

a

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
ee

* ‘
2 . * 1 — - „

*

0

, 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%.

>

J
i

—

“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,

2

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

—

—

as

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

y
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-

23

N

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

ry

— —— —

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,
© d recommended that Levine hold up on the trade. .
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 *
7
~

“A, ie — 7 9 98

aun r ˙ I ere P — — — — —— citar eds —
— 2 ————— . — 5

— —

7

*

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

4

‘e 7

42
— — — 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

8

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

2
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

N
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.

U

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 ~

S,

A-33
Appendix: B—Opinion of United States Court of Appeals

7
. 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

6

\

s and seizures does. not prevent the making 3

=

5
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

*

*

9

ac

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

. 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-
e

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 &

yy

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.

}

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— —

7
*

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.

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’

Ws

1

) 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

7

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

/
—

eA
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

0
8

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

5

5
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

*

42
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

1

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

—

in

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.

on

~

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

f

7

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

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
e

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0170%3A3. Public record. Not legal advice.