Petition for Writ of Certiorari — Cave v. United States

Supreme Court brief1968

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APPENDIX “C” -

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH.CIRCUIT

”

No. 18859

James Doyle Cave,

VS;

United States of America,

~ September Term, 1967

Appeal from the United States

District Court for the

Southern District of Iowa.

On consideration of the motion of appellant for a stay of

the mandate in this cause pending a petition to the Supreme

Court of the United States for a writ of certiorari, it is now here

ordered by this Court that the issuance of the mandate herein

be, and the same is hereby, stayed to and including May 1,

1968. If within said period of time there is filed with the Clerk

___of this Court a certificate of'the Clerk of the Supreme Court of —

‘the United States that a petition for writ of certiorari and

record have been filed, the stay hereby granted shall continue

until the final disposition of.the case by the Supreme Court.

“March 28, 1968,

Citations. to. Opinions Below pnaduswes seuwendoies -

~ Jurisdiction . . seveocers Secseevvcceeesccccocios ~

Questions Presented’ ....<. -ie veces ede ede ‘fe

Statement sev eebserateserenvemssenerdeatesiv:

Appendix B (Order isanies Rehearing) ie ae a

Appendix C (Order Granting Time to Petition for

WE Sh Goede ieee eco case: ee

CasesCited

Carlson v. United States, 187 F. 2d 366 (10th Circuit) .

Housten v. United States, 95 F. 2d 168 (8th Circuit) .,

United States v. Tippett, 353 F. 2d 335 (4th Circuit) . .

United States-v, Willis, 322 F. 2d $48 (3rd Circuit) ..

United States v. Wilson, 284 F.2d 407 (4th Circuit) .

In the Supeeme Court of the United States

o——-0—"—-0

OCTOBER TERM, 1967

: | on

oo 0-0

No.

. *

_ JAMES DOYLE CAVE, a 4

| —_ Petitioner

~~ £

; YY . 4 boss

UNITED STATES OF AMERICA, __ |

— on - Respondent.

. °

: PETITION FOR A WRIT OF CERTIORARI TO THE

'. , UNITED STATES COURT OF APPEALS

: Wine ae 3

(Oo

Petitioner prays: thet a welt Gf covtionisttetio to voviow ihe

judgment of the United States Court of Appeals for the Eighth

Circuit entered in the above entitled case on March 1, 1968. )

CITATIONS TO OPINIONS BELOW.

The opinion of the United States Court of Appeals for the

_ Eighth Circuit, entered on March -1, 1968; is printed in

Appendix “A” hereto, infra pp. -29and is feported in —— Fed.

yee | 23

> ae

. i

‘

_ JURISDICTION .

The. judgment of the Circuit Court of Appeals for ‘the

Eighth Circuit was entered on March 1, 1968, and is printed in —

Appendix “A”, infra p..5 . The jurisdiction of this Court is | —S >

invoked under. 28 U,S.C.; ¢1254(1). Rule 19(b). Petition for

rehearing denied March 22, 1968. Order printed in. Appendix

“B”, infra p.30. Order granting time to petition for certiorari is

* printed Apel. “C”, infra p. 31.

QUESTIONS PRESENTED

1. Witnesses from whom property is alleged to have been .

obtained by fraud having testified that they were willipg sellers

proper: subject in inquiry in order to establish jurisdictional

ast “valye of more than $5,000.00.

2, Whether . or not establishing that property alleged to

have been obtained by fraud i is in excess - $5,000.00 i isa part

of establishing conspiracy.

Mg STATEMENT ms "

James Doyle Cave, Des Moines, Iowa, was convicted of the

crimes of conspiracy (18 U.S.C. +371) and _ interstate

transportation of fraudulently obtained property over

$5,000.00 (18 U.S.C. 2314). The United States Circuit Court of .

Appeals for the Eighth Circuit affirmed the. convictions on

March 1, 1968, and denied rehearing on March 22, 1968.

Petitioner was sentenced to 2 years. and fined $3,000.00.

James Doyle Cave is an employee of. lowa Power and Light

Company, the local electrical all and has been s0 siete

- for many years.

Also tried with Cave were Calvin Dennis Sirkin, aliss Horry

Karl, and Sanford Samuei Amsterdam, alias Jake Jackson, “

We ee

Chicago, Illinois. Calvin Dennis Sirkin, alias Harry Karl, and -

Sanford Samuel Amsterdam, operated a drug store for a few

weeks prior to the incidents. sralven | in the alleged criminal act

‘in Des Moines, asap

Sirkin, alias Heery Karl, had fraudulently purchased

numberous appliances from local businesses and had them

delivered to the drug store. The Government produced the

; sellers to establish the value of the merchandise purchased. The ©

various sellers were permitted to testify as to the “suggested

retail price”, the “regular retail price”, “wholesale price”, and -

the “actual sale price” to the defendant Sirkin, alias Harry Karl, -

over Sinton of James Doyle Cave. ~

It was sail out by the attorneys for the defendants and

. James Doyle Cave that in each i involving the

purchase of an item at the price paid. b 7 , alias Harry Karl,

| the seller was a willing seller.

The total value of ‘the items. purchased a dlaies in

interstate commerce at the “actual sale price” was the sum of

$4, 497. “4. ‘

The ‘alana of the various sellers as to the “suggested

retail price”, “regular retail price”, and “wholesale price” was

introduced over the proper objection of the defendants.

By using the “suggested retail price” as the value of the

| Seeny Sip Sevens ne ae Sp eaten ele Stee

of the jurisdictional amount.

On appeal the admisability of the evidence as: to

“suggested retail price” was assigned as error. The Eighth

Cire Comet ef Appeals abestnt Gis claien of etter. :

| -REASONS FOR GRANTING THE WRIT -

1. A conflict on “jurisdictiorial value” evidence exists

, _« between the various circuit courts and should be resdélved by

ee this Court. U, S. v. Tippett, 353 F. 2d 335 (1965).(4th Circuit);

_U.S. v. Willis, 322 F. 2d 548 (3rd Circuit); Husten v.'U. S., 95 —

F. 2d 168 (1938) (8th Circuit).

. 2. A conflict exists between the circuit courts as to the

necessity of proving “jurisdictional value” in establishing a

“conspiracy” conviction. United States v. Wilson, 284 F. 2d

407 (4th Circuit); Carlson vy. Si — F. 2d 366 (10th

» Circuit). é

CONCLUSION ;

For thé foregoing reasons, this Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

VERNE LAWYER

427 Fleming Building ©

- Des Moines, Iowa 50309 _

Attorney for Petitioner

5 ‘

| APPENDIX “A” &

_ UNITED STATES COURT OF APPEALS =~

aad _ - FOR THE EIGHTH CIRCUIT

No. 18,859 .

- . ; 4 5 rn

James Doyle Cave, — _ Appellant,

v. |

United States of America, :

Appellee.

No. 18,895 ,

‘ a, Appeals from the.

United States District’

: Sanford Samuel elit, Court for the Southern

| District of nn.

v. |

- United States of America,

- Bes . Appeliee.

_ No. 18,938 :

Calvin Dennis Sirkin, Appellant,

"esti

: : ‘

United States of America,

(J. ia | (March 1, 1968.)

‘Before Van Gosterhout, Chief Judge: meetin, Circuit Judge, ;

‘and Harris, Chief District Judge.

Harris, Chief District Judge.

The appellants bring these inci from convictions by a

jury and judgments entered thereon finding them guilty upon

. each of two counts of an indictment. The Grand Jury of the

Southern District of Iowa on May 26, 1966, returned a two

count indictment against James Doyle Cave, Calvin Dennis

Sirkin (also known as Harry Karl), and Sanford Samuel

Amsterdam (also known as Jake Jackson) involving conspiracy

and interstate transportation of property obtained by fraud.

The cases were submitted on the original files and briefs.

Count I of the indictment charges conspiracy in violation

of Title 18 U.S.C. +371; . Count II of the indictment charges

interstate transportation of. property obtained by fraud in

violation of Title 18 U.S.C. 42314. ? The indictment is rather

lengthy and it appears unnecessary to restate it here as no

question ‘of its sufficiency is raised by appellants and pertinent -

provisions will-be included in the statement summarizing the

evidence. |

2 _— of convictions were > catenctl by tt the Honorable

Roy L, Stephenson, Chief Judge, presiding. Calvin Dennis Sirkin

(Harry Karl) and Sanford Samuel Amsterdam (Jake Jackson)

were each sentenced on Count I to imprisonment for a period

of five years and fined $10,000, and on Count HI to

imprisonment for a period of five _yeats to run concurrently

—

. 1 Section 371. “If:two or persons conspire * * * to commit any offense

the United Staten ** in any nee Or any purpose, and one or more

such persons do Gat Sct to cltect the object of the , each shall be fined .

not more than $10, or imprisoned not more than 5 years, or b ital patient

wares, securities or a ot

ares, merchandise, securities or money, of the 4 Eh

“a en a tite Gam ton roam.

with the sentence imposed on Count A. janie Doyle €ave was

sentenced to imprisonment for a period of two years and fined

$3,000 on Count I and on Count II to imprisonment for a

. period of two years to run concurrently with the sentence

imposed on Count I.

Separate-appeals have been taken. Appellant Cave files a

separate brief. Appellants: Amsterdam and Sirkin have filed their

briefs jointly. All — will be disposed of in this opinion.

The three aeilintii contend that the court erred in failing

‘to direct a judgment of acquittal for the reason that the

Government failed to establish the jurisdictional value of

$5,000. In addition thereto Appellant Cave contends (1) the

evidence was insufficient to establish the allegations as to him;

- and (2) the Court erred in admitting testimony and exhibits

which were hearsay, incompetent, irrelevant and immaterial as

__ to him. However, at the close of the Government’s °S case when —

Appellant Cave ‘filed a written. ‘notion Of his claims of error

motion in connection with their motion of acquittal at that.

time. We examine these claims and.recite the facts applicable to |

- each of them.

Except for one exhibit offered by defendant Cave,

appellants failed to testify, or offer any evidence in their own

defense, which is their right. Nevertheless, the testimony of the

Government is. uncontradicted, except as to any possible

Caeepeies in the. “testimony of matters relevant to the case.

C3 3 ,

~ In view of the nature of these cai Asin eva

of law applicable thereto, a rather full and complete statement

of the facts appears to be necessary.

“The evidence discloses that in August, 1965, Pearl Michlin

was the sole owner of an Iéwa Corporation, Super Drug, Inc., a”

‘

8 eee :

retail drug business located at 609 Walnut Street in Des Moines,

Iowa. The drug store was actually operated by her husband,

_ Harry Michlin, assisted by their son Franklin, Harry Michlin also

was the owner of a drug store, King’s Pharmacia in San Juan,

Puerto Rico, |

_ During the early part of the summer, 1965, the Michlins

advertised the sale of Super Drug in the local newspapers and a

well-known trade magazine. In July, 1965, ‘Harry Michlin

received a telephone call from Lew Farrell indicating an interest

in the the proposed sale and arranged a meeting for the purpose

of discussing it. , ’ |

A few days later Mr. Michlin joined Mr. Farrell at the Des

Moines airport. Farrell had with him Allen Robert Rosenberg _

introduced to Michlin as Mr. Allen, and another man unnamed.

Allen (Rosenberg), a large person, some six feet two inches or

more tall, weighing 240 pounds, talked to Michlin about the

sale of Super Drug. No commitment was made and no

_ agreement for any further meeting.

On‘or about August 11, 1965, Mr. Allen called Mr. Michlin

. and asked that he meet him at the Des Moines airport. On

_ arriving at the airport Michlin was introduced to a Mr. Harry

Karl by Allen. It later developed and is admitted that Harry

Karl is in fact Calvin Dennis Sirkin, one of the defendants

herein,

Mr. Michlin took Mr. Allen (Rosenberg) ‘and Mr. Sirkin

(Harry Karl) to the Super Drug store. He showed Sirkin around

the store and explained its operation. On inquiry from Allen,

Michlin advised that the liabilities and assets, including fixtures

of the. business were each about $25,000. Michlin asked

$10,000 for the corporate stock on behalf of his wife. There

was further discussion between Sirkin and Michlin at the store;

Allen had left. After he returned, Allen and Michlin left Sirkin

9 ‘ ; -

at the store and went to the home of Lew Farrell where an

agreement was made to transfer all of the stock of Super Drug, |

Inc., to Harry Karl (Sirkin). Michlin and Allen returned to the

prea. § They had an additional conferencé with Sitkin =” all

tliree agreed to the terms of the sale.

Sirkin. thus obtained control of the assets of - the

corporation, which h included the inventory, store fixtures and

the corporation’s- bank account with. a .balance of some

$1300.00. In return Sirkin was to issue to Mrs: Michlin two

checks in the amount of $2, 000 each on the Super Drug, Inc.,

- bank account; one check postdated two weeks following the

consummation of the sale and one postdated four weeks

following the consummation of the sale. Michlin gave Sirkin a_

list of the. liabilities of the corporation. He guaranteed its

accuracy within ten percent. It was further agreed that if. the

liabilities exceeded those listed, plus ten percent, the excess

would be deducted from the $4, 000 ‘to be — for the stock in

postdated checks.

in Suithen consummation of the sale Mr. Michlin

_ authorized his attorney to prepare the necessary papers and his

‘son Franklin accompanied Sirkin to the Valley Bank & Trust

Company where control of the bank account of the corporation

was transferred to Harry Karl (Sirkin). /

On returning to the drug store. Harry. Karl (Sirkin) issued

two checks, each in the sum of $2,000 payable to Pearl Michlin

on the Super Drug, Inc., account; one was dated August 19,

1965, and the. other dated August 26, 1965. The arrangements

for the transfer of the. stock and the consummation of the sale

were thus completed August 11, 1965. The ownership and

operation of the drug store and all activities were thereafter

3 ee en ea :

Before leaving for Puerto Rico on August’ 14 or 15, 1965, ;

. ee eT ee ee the new owner

‘

he ° . .

. of Super Drug, to Herbert Collins, the pharmacist. Collins was _

asked to remain as pharmacist of. the store and agreed. At

Michlin’s suggestion - another former employee, Larry

Christensen, was employed by Karl on a part-time basis. Karl

also employed Marie DeBrouse as cashier. |

Under Karl’s management of the nen store the stock of

_ merchandise immediately went down. The employees noted

that Karl failed to maintain the stock and inquired about it.

Karl stated that Michlin had misled him regarding the liabilities

of the business and as a consequence the store was short of

cash, This concluded one phase of the sequence of events and.

' began another.

~ ~On_August 30, 1965, another individual, Sanford Samuel

Amsterdam, one of the defendants herein, arrived at the drug

store and was introduced to the employees. by Harry Kari as

Jake Jackson, the new bookkeeper. The office was located in

the basement of the store. Amsterdam, known as Jake Jackson,

went’ to’ the office where -he spent most of his time. When

employee Christensen arrived at the store that afternoon, Karl

(Sirkin) took. him to the basement and introduced him to Jake

Jackson (Amsterdam) as “Jake” and advised that Jake was a

: en in the business.

The next day, August 31, 1965, Karl told Marie DeBrouse

that some big items would be coming to the ‘drug store and

when they arrived she was to notify Jake (Amsterdam) and that

he would come up from the office and take care of them. Karl

also advised her that if she had any problems, to take them up

with Jake. There was a telephone in the basement office and it

was from this office that Karl and Jake conducted most of their

. Sa . -

es dew Amid 31, 1965, Elmer Harleen, ‘a partner

. in Central TV sale located in Des Moines, received a telephone

call from a man who identified himself as Harry Karl, manager

of Super Drug. He told him that he wanted a certain color '

television-phonograph combination for promotional purposes at

his store. Harleen did not have this particular set but did have a

comparable. model. Karl placed an order for it and i quired as

to the price. He was quoted a retail price of $975.00. The caller

stated that he just wanted the set brought down and set on the

floor; there would be no service or installation; and it wOtld be

a_cash sale on delivery; with this representation a ‘price of

$875.00, plus sales tax, was agreed to. Harleen made up an_.

invoice and arranged for the delivery of a RCA Model HG883L,

Serial Number 16CA9819. It was delivered to Super Drug where

a check was given in the sum of $892.50 drawn on Super Drug,

Inc., signed by Harry Karl. The check was later presented for —

payment and returned marked “Account Closed”. :

Also, later that day, August 31, 1965, B. A. Amos, a

salesman for Mitcham TV of Des Moines, received a call from a

person who represented Super Drug and wanted a color

television set to be given as a prize for promotional purposes.

The sale of a RCA Model 881W was consummated at a Price of

$975.00; delivery was made to Super Drug and a check was:

issued therefor in the sum of $975.00 drawn on Super Drug,

Inc., signed by Hafry Karl. When the check was presented for

payment it was returned marked “Account Closed”.

_... Also, on August 31, 1965, Charles Gilderbloom, manager

of the electrical appliance department at Younkers Department.

Store, returned a call from a Mr. Harry Karl at Super Drug. Karl

wanted to buy-a RCA Model HG761W color television set to

give away as a prize. He asked for a special price. The retail

price was $765.00. Gilderbloom agreed to sell the set for

$634.80, plus sales tax, on a cash sale basis, Mr, Gilderbloom

made out the sales ticket and arranged for delivery the ‘next

day, September 1, 1965. On delivery, a check was issued on the

Super Drug, Inc., bank account, signed by Harry Karl, When

12>

presented for payment it was returned marked “Account ©

Closed”: hee i : ,

~ On August 31, 1965, Mr. Karl called Gene Nicholson

Stores and talked to Mark Summey, a salesman, He identified

himself from Super Drug. He wanted @-combination color

TV-radio-phonograph to be used as a gift. A Curtis-Mathes:

Model U321BMX was sold and delivered for $700.00, plus sales

_tax. On delivery to Super Drug a check in the sum of $714.00

drawn on Super Drug, Inc,, and signed by Harry Karl was given. .

When the check was presented for payment it was returned

marked “‘Account Closed”, -

On August 31, 1965, Kenneth Kdlsem, owner and manager

of Ingersoll TV located in Des Moines, received a call from a

person identifying himself as Harry Karl with Super Drug. He

wanted a color combination TV set for a promotional purpose.

He explained it would be a cash sale on delivery. A price of

$650.00, plus tax, was agreed to and a Zenith 7050W was

delivered to Super Drug. ‘A check was given in the sum of

_ $663.00 drawn on Super Drug, Inc., signed by Harry Karl, The

check was presented for payment . and returned marked

“Account Closed”, & : Veer

Also, on August 31, 1965, Ed Orth, Salesman for Philco

Distributors, Inc., received a telephone call from the new owner

of Super Drug. He wanted a Philco air conditioner to use as a

. door prize for promotional purposes. A price of $189.54 was

agreed to on‘a cash sales basis. A Philco Model 9ACS54 air —

conditioner. was delivered on September 1, 1965, to Super

Drug, through an error by the delivery-man it was delivered on a

credit basis rather than a C.O.D. Philco Distributors, Inc., was

never paid for the unit by Super Drug.

. On August 31, 1965, Dale McCombs, an order ‘clerk

employed by Gifford—Brown; Inc., in Des Moines, received a

Closed”.

call from a person identified as ‘Harry Karl of Super Dnig, He

.wanted to purchase an air conditioner for a door prize on

reopening of his store. A Chrysler Model H-1353 was purchased

for $198.00, plus sales tax. It was delivered to Super Drug on

September I, 1965. A check was issued in the sum of $201.96

drawn on Super Drug Inc., signed by Harry Karl. The check was

returned when —, fer payment marked “Account

On August 31, 1965, Harry Kramer, owner of Midwest

Vacuum Cleaner Company in Des Moines, received a telephone.

_ call from a man who identified himself as Harry Karl of Super .

Drug. He wanted to purchase ‘six upright vacuum cleaners for

promotional purposes, A price of $49.00 each for the six.units

- was agreed upon and Kramer personally delivered them to

Super Drug. He regeived in return a_check. in the arhount of

$294.00, drawn on Super Drug, Inc., > ge ikem Kari. The

retail price for each unit was $59.00,

presented for payment ‘i it was returned marked “Account

On August ‘31, 1965, Rudolph Pileplin. manager of

| “Pidgeon’s Store in Des Moines, received a telephone call from a |

man’ who identified himself as Harry Karl and wanted to

purchase an air conditioner for promotional purposes at his

store. They agreed on a price of $175.00, plus sales tax for the

purchase of a Model 409 General Electric air conditioner. The

EWG i

See eee ee

On August 31, 1965, jd Wisi al ide

Television, located in Des Moines, received a call from a man

representing himself from Super Drug and wanted to obtain a

color’ television-combination set to give as a prize in his .

promotional program. Hauck advised he did not have such a

combination set'in stock. The caller requested him to ascertain.

rm.

the dhack wes

the price of a set of this kind ond call him back. This particular

television set was in‘ the price range from’$800.00 to $1200.00,

| It was not ordinarily stocked by A & aA Television. Hauck called

the Des Moines Credit Bureau and made i inquiry regarding Super :

Drug. From the information he received he advised Super Drug

- he was not interested.

. The evidence further reveals that on. pial 31, 1965, the

employees at the store ‘observed four television sets and six

vacuum cleaners delivered to the store, On each delivery “Jake”

(Amsterdam) came up from the basement office and gave an

envelope to the deliveryman, except on one or two occasions he

_ gave it to Mrs, DeBrouse to give to the deliveryman. When the

pharmacist Collins and Mrs, DeBrouse, the cashier, asked Karl

about the merchandise being delivered he stated that he was

‘going to give them away as pernes in a drawing ‘op the Grand

Opening.

The aati items delivered on August 31 were in the store

: when both Mr. Collins and Mrs. DeBrouse left at 6:00 p.m.,

When they returned the next morning for duty at 9:00 a.m.,

September 1, 1965, the merchandise had been removed.

“On TE ig 1, 1965, at 7:03 a.m., James Cave, a

defendant herein, rented a sixteen foot van lift truck from

Greater Iowa Leasing Co. It was retumed at 9:45 a.m. on the

same Gay.

Also, on Woisieedas September. 1, 1965, when the two air

const on Wainnay, epne 196, nh

Super Drug store, Jake came from the basement and gave an.

envelope to each deliveryman, ; Observing the activity, Mr.

Collins, the pharmacist, told Mr. Kar (Sirkin) that it appeared |

; ' to. him something “phony” was going on and requested his pay

’ i

for the days he had worked that week before leaving the store.

: oe ee ey dt te Tatars be wanted his péy

at the end of each day.

3 &-.

During the afternoon of .the same day employee

Christensen went to the store for his check. Karl and Jake

informed him that they were going to change the store to a drug

‘ store with an electrical appliance section. It would be necessary

to get the merchandise out of the store as the painting ;

contractors were coming in to remodel. They asked Christensen

to work that night, which he did. Christensen had not worked

on August 31, but on that day, September 1; he observed the

large console g6lor ‘television set and air conditioners in the

~ store. He testified that he heard conversation between Karl and

epdrrtee taking all eanayues toa warehouse.

‘iin. before Mrs. DeBrouse left that evening Karl told her

he was closifig the store for remodeling for a week or $0, and be

would call her whet to come back to work,

In the sequence of events defendant Cave went to the

Bethel Mission Transient Shelfer for Men, about 7:45 p.m.,

September 1, 1965, where he arranged with Rev: Perry,

assistant superintendent, for three men to load a truck. Charles: ~

White, John Viola and Harold McMains were selected. Cave was

“known to-them only as “Jim”, and he drove them from the

Mission to the back door of the Super’Drug ‘store. En route to

the store Cave told them he had about four hours: work for °

. them, packing and moving on for which he would pay

$1.50 an hour.

Sen ap cecibied ah thsisdans tue vdahldicdl bb ear

door. It was unlocked and opened, He and the three men

entered. Cave was in-his car from which he unloaded new boxes

and brought them into the store. Cave introduced White, Viola

_ and McMains to defendant Amsterdam as “Jake” and told them

that he, Jake, would tell them what to do. Viola put new boxés

together and the others, including Karl and Jake, ‘took the —

merchandise from the shelves and put it in the boxes. Employee

CS Seen A See ee a eee wise Cave

was still in the store when Christensen left. Christensen heard

Cave on the telephone calling rental agencies for trucks to move

the merchandise. Cave inquired of the three laborers from the _-

Mission if either of them could drive a truck; White volunteered.

When White left to go get the truck, Cave left the store. Packing

continued. until about 11:45 p.m. Defendant Sirkin was giving

most of the orders and he and Amsterdam spent considerable

time talking on the telephone. |

Before .12:00 that night Cave returned and picked up

laborer White to take him to Greater Iowa. Leasing Corporation

to get a truck. On the way Cave said that he had to meet a man.

- at. the airport at midnight. He drove to the airport and left . ©

White in the car while he went into the terminal building: he

_. came out momentarily got into the.car and said “I missed my _

fellow but maybe he’s down to the house”. On the way back he

stopped at Lew Farrell’s house at 3600 Fleur Drive, A large,

heavy set man and another younger man came out and Cave

advised them that he had missed the man at the airport. The

Cave then drove’ laborer White in his car to Greater lowa

Leasing Corporation; they both went into the office, Since prior

| arrangements had been made for the rental of a twenty foot van

lift, truck, this truck was rented to Chartes Robert White, the

laborer, for “Parker Super Drug” at 12:08 a.m., September 2,

1965, Cave did net go back. to the drug store, but White drive

- the truck, back and. parked \it on a side street as he had been

instructed by Jake (Amsterdam). White knocked on the front

door and Amsterdam, let him in, Since they were ready to load

_ they inatracted White to. back the truck up to the door. |

pt, |

; | 3 17

Defendants Sirkin and: Amsterdam and the three laborers

began loading the truck. It became apparent that the truck

: would not hold all of the merchandise. Amsterdam gave White

Gas $4.00 and instructed him to take a cab to the leasing company —

and get another truck. White returned to Greater Iowa Leasing ©

- Corporation at 2:16 a.m., obtained an eighteen foot van lift

truck, which he drove back to the store, »

‘These two defendants and the three laborers completed

the loading-:about 4:45 a.mi. All the merchandise, including the

television console and air conditioners, had been removed from

the store and loaded into the trucks. The laborers wete paid for

their work. ra a

_ Sirkin remainéd at the store. ‘Amsterdam with White,

Viola, and McMains drove the loaded trucks to the Western

o ‘Transportation terminal where they were parked ‘at

Amsterdam’s direction. Amsterdam then went into the terminal

where he contacted Joe Frank, manager of the Des Moines —

terminal of .Western Transportation Company. Amsterdam

identified himself as Jake Jackson, an employee of Super Drug,

and said that he wanted to load a trailer to go to Chicago, Frank

ativised him he would have to wait until daylight; it was then

about 5:00 a.ni,, September 2, 1965. Amsterdam 7 White,

Viola and McMains if they would come back later in the

morning and transfer the merchandise from the trucks into a

trailer, the three agreed. Amsterdam gave McMalins a telephone

number and asked thatvhe call him at 9:30 that morning.

At 9:00 a.m. Collins, the pharmacist, went to Super Drug .

to begin his day’s work. He found the store locked, brown

Paper covering the. windows, and a sign on the door which said

“Closed for Remodeling”. neg

About 9:30 a.m, that morning McMains called Amsterdam;

on instructions to meet him at 10:00 a.m., at the Western

| : . a

terminal, McMains, White and Viola went to the terminal; In a

few minutes Cave ‘and Amsterdam arrived, ‘Amsterdam went

into the terminal where he contacted Jerry Almond, an

- ‘employee of Western. Amsterdam identified himself as Jake

_ Jackson, a representative of C & M Merchandise Company. He

furnished Almond necessary information to prepare a bill of

lading for shipment of 125 cartons of drug sundries weighing

16,000 pounds and five television consoles from C & M

Merchandise, Inc., Des Moines, to C & M Merchandise, Inc.,

4444 N. Milwaukee, Chicago, Illinois, on Western Trailer No.

460.

On instructions from Amsterdam, Cave, White, Viola and

McMains transferred the merchandise to Trailer 460. While this

was being done Amsterdam told McMains that part. of. the _

merchandise was going to Chicago and pest of it was going to

Detroit.

After the first rented truck of Greater lowa edie

Corporation had ‘been emptied, Cave advised White he had more

“Sstuff” to be picked up and instructed White to take the truck

to 63rd Street, North of University Avenue, and wait for him.

White went to the designated place and waited, Cave and

Amsterdam. arrived by car in a few minutes. White was directed

to back the truck into the driveway of 1707 63rd Street,

Occupied by Miss Darlene Bradley. Miss Bradley was Cave’s

friend for many years and worked for him as an employee in a

chib. She testified that Cave had access to her garage and. had

permission to use it. Cave, Amsterdam and White removed four

color television consoles and a number of small boxes out of the

garage and loaded them on the track. White drove the truck

“back to Western’s terminal. When they arrived the second

rented truck had been unloaded and they then loaded onto the

_ Wailer the merchandise brought from Miss Bradiey’s garage. The

‘doors of the trailer were closed. The rented trucks were

- Tetumed to Greater Lowa Leasing Corporation, The trucks were

checked i in by Cave and eaaatcietat at 2: 04 p.m., Raptor »

1965.

Defendant Amsterdam promised the three laborers if they

would “come” to Chicago he would give them jobs of the samé

_ type of work and pay them $100.00 to $150.00 a week.

Amsterdam wrote on a. paper what was purported to: be his

home phone number in Chicago and signed his name’ “Jake

Jackson” on the slip, which he gave to White. They went to

Chicago later and attempted to contact “Jake Jackson” at the

number give to them, but were unsuccessful,

The : activities for the three days at Super’ Drug were

reported and during the afternoon of September 2 Collins went

to the store with the Iowa State Pharmacy Examiner to check

the narcotics. They found the narcotics were still in the cabinet

but all the merchandise was gone,

Harry Michlin deoeitues the two checks given. to Mrs..

Mictilin in ‘the sum of $2;000 each, but they were returned

marked “Payment evinces rp and were never eee. ;

- Defendant Cave was an employee of Iowa Power & Light

Company. He stated to Agent Mullaney of the Federal Bureau

of: Investigation that he first became acquainted with Karl

several years prior to these events when Cave was operating a

Key Club in Des Moines, Karl was a patron and claimed to be

from Detroit. Cave said he accidentally ran into Karl in’ Des

Moines at which time Karl told him that he had purchased ;

Super Drug from Harry Michlin. Cave claims. that Karl

contacted him ‘for assistance in obtaining trucks and some

laborers to move merchandise, He said that Mr. Karl informed

him that he-had been ordered or instructed by his landlord to

_vacate the premises, which was the reason for his moving the

stock, went on to relate to Agent Mullaney the events of

his — as has been described.

. Defendant’ Cave was shown a photograph of defendant

Sanford Samuel Amsterdam (Jake Jackson) by Special Agenit

Mullaney and asked. Cave if. he_knew or recognized him. Cave

‘stated that he did not. : SIO ea pe

- On September 4, 1965, Amsterdam was’ arrested in -

Chicago by officers of the Chicago Police Department: He was

interviewed by Special Agent Perkins of the F.B.I., during

which time he stated that he had recently won $13,000 from

Harry Karl in a gin rummy game at the Super Drug store in Des

Moines, lowa. After the game Karl had tequested him to take:

the winnings in the form of money orders. He would not say

what date the card game took place, but did say that he was in

the Super Drug store in Des Moines the day following the game

and all the merchandise was there at the time. 7

On September 7, 1965, Trailer 460 arrived at the terminal

.of Western Transportation Company in Chicago, Illinois,

Western attempted to make delivery to the consignee without

success. The tfailer was stored: temporarily, and by order of the

United States District Court for the Southern District of Iowa,

Western returned Trailer 460 to Des Moines consigned to John

Landess, Reveiver in Bankruptcy of Super Drug, Inc, The trailer

arrived in. Des Moines September 24 still sealed with the seal

number which had been issued to Amsterdam on September 2

at the Des Moines terminal. The trailer was opened and found

to be filled with the merchandise that included the various

items described herein. Each of the items were subsequently

AIT to the suppliers through action of the Bankruptcy

... IN. THEIR ATTACK ON THE JUDGMENTS OF

“ESTABLISH SURISDICTIONAL VALUE AS REQUIRED

BY LAW. THLE 18USC/¢ 371.

We first dispose of this contention as applicable to Count I

of the indictment which charges that the defendants entered

into a conspiracy between themselves and other unknown

— persons to commit an offense against the United States by

transporting in interstate ‘commerce goods, wares and

merchandise of the value of more than $5,000, which the

defendants knew to have been taken by fraud.

That there was a conspiracy committed i is undisputed. It is is

also undisputed that one or more of the defendants committed

overt acts to effect the object of the conspiracy. |

It’ is further undisputed that some goods, wares and

merchandise obtained by fraudulent representations were

transported in -interstate’ commerce through the combined

efforts and actions of the defendants.

In each of the ttansactions with the ten - business

establishments described herein, the caller, who claimed to be _

either Mr. Karl, or a representative of Super Drug, Inc., made

sopeveoetations that the merchandise was to be usai for ° ‘give

away”’, or ‘ ‘Pelee for promotional purposes.

Tifle 18 U.S.C, Tt 231 1 provided as follows:

“As used in this pan

“se

“* ‘value’ means the face: par, or tied value,

whichever is the greatest, and the aggregate value of

all goods, wares, and merchandise * * * referred to in

a single indictment shall constitute the Value

thereof.”

Appellants contend that the par RiNe cost (wholesale) of

the merchandise shipped in interstate commerce from Des

Moines, Iowa,. to Chicago, Illinois, amounted to $3,806. 34; that

actual sales price claimed to be market value as willing seller to

a willing buyer $4,769.90; and that the suggested retait price by

manufacturers to be $5,131.90. They submit a table to further

substantiate their contention as to appropriate value. to .be

placed on these items from the eight businesses obtained under

false representations.

The defendants strenuously insist that the actual sales

price agreed upon in each instance should be the market value

and thus aggregating less than $5,000.

The government contends and also submits a table which

shows the price to be paid for the eight items to be $4,577.60;

the retail price $5,134.60; and the retail price upon the

appellants’ notes found in the basement office onired as

testimony to total $5,363.96.

ee ee eo ee

uniformly held that the value of property taken by fraud is the

market value at the time and place of taking. Husten y. U. S., 95

F. 24-168, 171 (8Cir., 1938), and cases cited therein. The retail

or market value was properly used by the district 'judge.

Kowalchuk v. U, S., 176 F. 2d 873, 876 (6 Cir., 1949); Gordon

v. U. S., 164 F. 2d 855, eT 1947); Husten v, U.'S.,

supra. }

The trial court instructed the jury that in the present case

the market value would be the retail market value. The items

involved were of the same character and quality for the retail

trade. and were generally produced for the purpose’ of sale at

retail, They had. an individual retail: market value. Therefore, the

retail value should prevail over wholesale or replacement vale.

Herman». U, S;, 289° F. 2d 362 (5 Cir., riaraare as v.U, S.,

“t

In-Herman v. U. S., supra, the court said:

ot 5 tone ae ton te

23 .

“The standard test for determining market value of stolen

property is the price a willing buyer would pay a willing

seller at the .time and place the property was

stolen, * * * General retail value would naturally include a

reasonable mark-up, and evidence. as to retail value of the

goods is properly admissible.”

The qualifications of the witnesses from the various

‘the merchandise and it was proper to receive the testimony in

evidence as to the retail value of these items along with the

other values submitted in the tables of the parties. Gordon vy, U,

S., supra. . eo

The defendants rely heavily on_the case of U. S. v. Willis,

322 F. 2d 548 (3 Cir., 1963), as a case almost identical to the

'. factual situation here. That case aegis however, in

that it was reversed because the witness who furnished exhibits

showing alleged retail value of the goods, admitted that he was —

not qualified as an expert to furnish an opinion as to the retail

value. The court held the admission of this testimony was

prejudicial error since the exhibits were the only proof from -

which the jury could infer that the merchandise in question had

a market value al $5,000 or more.

However, this is a charge of conspiracy. ‘The testimony

established that there were two additional items with values not.

inchideg in the table of either party. A Model 409 General

Electric air conditioner at a price of $175.00, plus tax, was

ordered from Pidgeon’s Store in Des Moines in the same manner.

as orders from other businesses. The overt act in furtherance of

the unlawful scheme was. performed sf the telephone call and

ae to purchase, : \ ;

ema

‘Also, ” an attempt was made -to purchans ‘ solot |

television-combination set from A & A television in Des Moines,

- 24

which had a minimum price of $800.00. The overt act was

performed by ‘the telephone call, even though the purchase

failed because of the acuity of the employee of the company.

Assuming arguendo, but not deciding, the defendants

admitted value of $4,497.44 of the items actually delivered and —

transported in interstate commerce. to be the proper value that

should be used. The two additional items they attempted to

obtain but-not delivered with a value of $975.00 would bring

the total aggregate to $5,472.44, 7 ,

“It is not’ necessary to a conviction of a party to the

conspiracy that he perform any overt act, or that the

conspiracy succeed. Conviction may rest on proof of the

doing of any overt act by any of his co-conspirators for the

purpose of effecting the object of the conspiracy, and it is

not necessary to conviction that the overt act in itself be

one prohibited. by law.” Berger v, U. S., 145 F, 2d 181,

187, 188, on "

The offense of conspiracy is complete when an agreement

is made to commit an unlawful act and any overt act is made in

the furtherance- of the agreement whether or not the

contemplated crime is consummated. Marx v, U, S., 86 F. 2d

245, 249 (8 Cir., 1946); Pinkerton v, U, S., 328 U. S. 640; 644;

U, S, v. Bayer, 33) U. S, 532, 542; Carlson v, U, S.; 187 F, 2d

366, 369(10Cir., 1951), tC filthy

‘In. the Carlson vy, U. S., supra, this question was carefully

interstate commerce, and that an overt act’ in furtherance

25.

of the conspiracy was committed by one of the

conspirators, It was not necessary, however, to prove that

wheat of a value of $5,000.00, or more, or that any wheat

in fact was fraudulently obtained and transported. The

offense was complete when the unlawful agreement was

_ formulated and an overt act in furtherance thereof was

performed. Nor was it necessary that the overt act.

constitute the crime that was the subject of the conspiracy _

or even that it itself be a criminal act. Although innocent

@ . in itself, an overt act is sufficient to complete the crime of

es _ conspiracy if performed in furtherance thereof.” -

| We think the question of value as applicable to the charge

Gea of conspiracy in Count I was properly and correctly presented

to the jury for its determination and the evidence sufficient.

Appellant Cave next contends:

THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH |

THE ALLEGATIONS OF THE INDICTMENT AS TO

HIM AND THE COURT ERRED IN. FAILING TO

SUSTAIN DEFENDANT’S MOTIONS FOR JUDGMENT

OF ACQUITTAL MADE AT THE CLOSE OF

GOVERNMENT’S EVIDENCE AND AT THE CLOSE OF

ALL THE EVIDENCE AND MOTION FOR JUDGMENT

OF ACQUITTAL NOTWITHSTANDING THE VERDICT. |

Se A oe ae

Defendants Sirkin and Amsterdam adopt this contention

of defendant Cave in the record, but do not argue it in their. :

‘brief.

It is 4 well established ruie that in considering the recdrd |

on appeal in a criminal case from a jury verdict of guilty, the

appellate ‘court must take that view of the evidence which is

most favorable .in support of the: verdict and accept as

established all reasonable inferences that tend to support the

action of the jury. McClard, et al. v.ULS.,... F.2d... (8 Cir., »

December 4, 1967); Koolish v. U. $.,-340 F. 2d 513, 519 (8 -

- Cir., 1965), cert. den. 381 U. S..951 (1965); Smith v, U. S., 331

_ F, 2d 265, 278 (8 Cir., 1964), cert. den. 379 U. S. 824 (1964);

Thogmartin v, U, S., 313 F. 2d 589, 590 (8 Cir., 1963); Koop v.

U, S,, 296 F. 2d 53 (8 Cir., 1961); Blauner v. U. S., 293 F. 2d

723, 725:(8 Cir,{}961), cert. den. 368 U.S. 931, 82S. Ct. 368,

. 7.L, Ed, 2d 1939Cf Taylor v: Mississippi, 319 U. S. 583, 585—6

j (1943), 63 S. Ct. 1200, 87L. Ed. 1600. :

The undisputed evidence. as sindsiadloal herein establishes

the relationship of the three defendants and their actions

toward effecting the object of the conspiracy. Cave and Sirkin

. (Karl) renewed. acquaintances shortly after Sirkin arrived in Des

Moines, Cave was associated with the events that followed. He

assisted in effectuating the conspiracy. Even so, only a few days

thereafter, he denied that he knew the defendant Amsterdam.

It is well established that the gist of the offense of

conspiracy is agreement among conspirators to commit an —

Offense. attended by an act of one or more of the conspirators

to effect the object of the conspiracy. It is quite true, as urged

by the defendants and as held in United States v, Falcone, 311

U. S. 205, 240, that “Those having no knowledge .of ‘the

conspiracy are not conspirators.” Such rule is of no. aid to the

_ defenéants in this case~as there is substantial evidence to

establish that cach was a member and participant in the

conspiracy.

Of course, not all of the evidence is direct; much of it is

‘circumstantia?. But, “participation in a criminal conspiracy need

not be proved. by direct evidence; a common purpose and plan .

may be inferred from a ‘development and a collocation of.

- circumstance’ ”, Thogmartin v. U. S., supra; Issacs v. U. S., 301

F, 2d 706, 725 (8 Cir.,. 1962), cert, den. 37] U.S, 818, 83'S.

_ Ct. 32, 9 L, Ed, 2d 58; Glasser v. U, & 315 U.S. 60, 80, 62'S.

” Ct. 457, 469, 86 L,. Ed, 680; where it is established that a

; conspiracy has been formed, ‘‘but slight evidence, connecting a

defendant therewith may still be substantial, and if’ 50,

sufficient”. Issacs'v. U., S., supra; Galatas v, U, S.,. 8 Cir., 80 F.

2d 15, 24, cert. den. 297 U.S. 711, 56 S. Ct. 574, 80 L. Ed.

998; McDonald v. U, S., 8 Cir., 89 F. 2d 128, 138, 139, cert.

den, 301 U. S. 697, 57S. Ct. 925, 81 L. Ed, 1352; crx, v, U..

S., 86 F. 2d 245, 250.

This court stated the rule siinthate in Phelps, v, U, S, 160

F, 2d 858, 867, as follows:

~ “Once there is. ‘ satisfactory proof that a conspiracy hes

been formed, the question of a particular defendant’s

connection with it may be merely a matter of whether the

stick fits so naturally into position in the fagot as to

convince that it is part of it. It is therefore possible for the .

circumstances on an individual defendant’s participation in

an established conspiracy to become.substantial from their

weight in position and context, though in abstraction they

may seem only slight.” Cf. Issacs v. U, S., 301 F. 2d 706,

725,

There was substantial oe Pi to support the_action of the |

jury in returning a verdict of guilty ome each. of the

defendants.

The oe Somtqnten of defendant Cave i is:

THE COURT ERRED IN ADMITTING TESTIMONY

AND EXHIBITS THAT WERE HEARSAY,

INCOMPETENT, IRRELEVANT, AND IMMATERIAL

AS TO HIM.

Defendants Sirkin* and Amsterdam embraced this

contention in the record, but did not ificlude it in their brief.

"The argument here is that the admission of the testimony |

of various conversations by one or more of the conspirators not.

2B.

telephone calls to the various businesses arranging for the

. merchandise which was outside of his presence, was hearsay,

irrelevant, immaterial and improper, and, therefore, prejudicial,

It is strongly contended by Cave that he had no knowledge of

_ the prior wrongdoings of Amsterdam and Sirkin,

“A defendant can join a conspiracy at any time and may

be found to have done so when, with knowledge of its

existence, he has undertaken to further its design. Thomas

v, United: States, 8 Cir., 156 F. 897, 912, 84 C.C.A. 477,

17 L.R.A., N.S., 720; Allen v. United States, 7 Cir., 4 F.

2d ge 691; Parnell v. United States, 10 Cir., 64 F. 2d

324,327." -° « Al opi ;

The well recognized rule that there must be proof aliunde

before the acts and declarations of an alleged conspirator not

made in the presence of a defendant may be admitted, does not

serve here to render the testimony timely challenged

inadmissible. Thogmartin v. U. S., supra; Glasser v. U, S., 315 U.

-S. 60, 74, 62 S. Ct. 467; Minner y, U. S., 10 Cir, 1943, 57 F, 2d

In view Of the foregoing conclusions as to the conspiracy

count it is unnecessary for us to consider the evidence as to the

second count charging interstate transportation of the

merchandise obtained by fraud, If the defendants were properly

Convicted upon either count of the indictment, then in 2s much

as the'sentences on each count is the same and is not more than

Thogmartin v. U.S., supra, Wood v. U. S., & Ciz., 1960, 279 F.

2d 359,'360; Bowen v. U. S., 8 Cir, 1946, 153 F.2d 747, 751, .

_ Gest. den. 328.U. S. 835, 66 S. Ct. 980, 90 L. Ed. ¥6¥1; Gantz

vy. U, S., 8 Cix., 1942, 127 F. 2d 498, 501, cest. den. 317 U.S.

625, 63 S. Ct. 47, 87 L. Ed. 505.

This somewhat lengthy and vigorously contested case

presented a number of difficult questions for the presiding”

judge. The contentions of error are without merit. We are

convinced that theré was no prejudice to the appellants through

any of the trial court’s rulings, that the cases were tried with

great care by Judge Stephenson, and that the appellants had a

’ fair trial. |

Judgments affirmed.

A true copy.

ss Attest:

Clerk, U. S. aes of Appeals, Eighth Circuit.

APPENDIX “B”

- UNITED STATES COURT OF APPEALS»

FOR THE EIGHTH CIRCUIT |

No. 18859

James Doyle Cave, Ns ieieeh ir .

. _, Appellant,

vs. Ae | <

" United States of America

Appeal jon the’ United States

District Court for the

Southern District of Iowa.

Petition of appellant for rehearing in this cause having

been considered, it is now here ordered by this Court that’ the

same be, and jt is hereby, denied.

: March 22, 1968

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