Petition for Writ of Certiorari — Berman v. United States

_

SUPREME COURT, U. S.

OMartT™

in the SMAEL RODAX, JR.,

Supreme Court —

of the

Gnited States

OCTOBER TERM, 1972

73-411

BERNARD BERMAN,

Petitioner,

v8.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JOHN W. PRUNTY, ESQUIRE

Attorney for the Petitioner

837 City National Bank Bldg.

Miami, Florida

MIAMI REVIEW — 371-4853 — 377-3721

INDEX

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT __

DECISIONS TO BE REVIEWED

JURISDICTION _...

QUESTION PRESENTED

STATUTORY PROVISIONS INVOLVED ___.

STATEMENT OF THE CASE

ARGUMENT

CONCLUSION

CERTIFICATE OF SERVICE

Case

_ Barnes v. United States,

87 L.Ed.2d 380, 93 S.Ct. ___., ____ U.S. —_,

#72-5443

In Re Winship,

397 U.S. 358, 25 L.Ed.2d 368,

90 S.Ct. 1068 (1970) ___.

Leary v. United States,

395 U.S. 623, L.Ed.2d 57, 89 S.Ct. 1532 (1969)

United States v. Cameron,

460 Fed.2d 1894 (1972) __

CONSTITUTIONAL, STATUTORY AND

RULE PROVISIONS

Rule 19, 1(b), Supreme Court Rules

18 U.S.C., §371

18 US.C., $1708

28 U.S.C., §1254(1)

Page

7,8

6, 7

3, 4

in the |

Supreme Court

of the

Ginited States

OCTOBER TERM, 1972

CASE NO.

BERNARD BERMAN,

Petitioner,

v8.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner, BERNARD BERMAN, prays that a Writ

of Certiorari issue to review certain Opinions and Orders

of the United States Court of Appeals for the Fifth Circuit

entered September 11, 1972 and August 6, 1973, in Case

No. 71-1673.

DECISIONS TO BE REVIEWED

_ The Opinion and Order of the United States Court of

Appeals for the Fifth Circuit dated September 11, 1972,

not yet reported (A. 1-19), affirming the conviction of the

Petitioner and two other defendants upon charges of sub-

stantive and conspiracy violations of 18 U.S.C. 1708 (pos-

sessing property stolen from the mails) is presented for

review. Likewise, the Opinion and Order of the United

States Court of Appeals for the Fifth Circuit dated August

6, 1973, not yet reported (A.20), denying the Petition

for Re-Hearing of the Petitioner is presented for review.

JURISDICTION

The original Opinion and Order of the Court of Ap-

peals of the Fifth Circuit was entered September 11, 1972.

A timely Petition for re-hearing and for hearing en banc

was denied by Opinion and Order on August 6, 1973. This

Petition for Certiorari was filed within thirty (30) days

of August 6, 1973. The Court’s jurisdiction is invoked

under 28 U.S.C. §1254(1) and Rule 19, 1(b), Supreme

Court Rules.

QUESTION PRESENTED

WHETHER EVIDENCE OF POSSESSION OF

STOLEN NEGOTIABLE SECURITIES,

ELEVEN MONTHS AFTER THEFT, PER-

MITS THE TRIAL COURT TO CHARGE THE

JURY THAT A REASONABLE INFERENCE

MAY BE DRAWN THEREFROM THAT THE

POSSESSOR KNEW THE SECURITIES

WERE STOLEN.

“A” refers to appendix to petition. “T” refers to the trial transcript.

3

STATUTORY PROVISIONS INVOLVED

18 U.S.C., §871: |

“If two or more persons conspire either to commit

any offense against the United States, or to de-

fraud 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 imprisoned not more than

five years, or both.

If, however, the offense, the commission of which

is the object of the conspiracy, is a misdemeanor

only, the punishment for such conspiracy shall not

exceed the maximum punishment provided for

such misdemeanor.”

18 US.C., $1708:

“Whoever steals, takes, or abstracts, or by fraud

or deception obtains, or attempts so to obtain,

from or out of any mail, post office, or station

thereof, letter box, mail receptacle, or any mail

route or other authorized depository for mail mat-

ter, or from a letter or mail carrier, any letter,

postal card, package, bag, or mail, or abstracts

or removes from any such letter, package, bag, or

mail, any article or thing contained therein, or

secretes, embezzles, or destroys ‘apysuch letter, _

postal card, package, bag, or mail, or any article

or thing contained therein; or

4

- Whoever steals, takes, or abstracts, or by fraud

or deception obtains any letter, postal card, pack-

age, bag, or mail, or any article or thing contained

therein which has been left for collection upon or

adjacent to a collection box or other authorized

depository of mail matter; or

Whoever buys, receives, or conceals, or unlawfully

has in his possession, any letter, postal card, pack-

age, bag, or mail, or any article or thing contained

therein, which has been so stolen, taken, embez-

zled, or abstracted, as herein described, knowing

the same to have been stolen, taken, embezzled, or

abstracted—

Shall be fined not more than $2,000 or impris-

oned not more than five years, or both.”

STATEMENT OF THE CASE

Petitioner was indicted on one count of conspiracy to

violate Title 18 U.S.C., §1708, by receiving and having in

his possession stolen negotiable securities, knowing the

same to have been stolen from the United States mail. The

Petitioner was further charged in a second count with a

substantive offense of violating Title 18 U.S.C., §1708

(A. 21-25).

The case went to trial on November 16, 1970, in the

United States District Court in and for the Southern Dis-

trict of Florida, and the jury returned a verdict on Novem-

ber 30, 1970 finding the Petitioner guilty on both counts.

The two other defendants, tried at the same time with the

Petitioner, were likewise found guilty.

After considering and denying post-trial motions the

Trial Court sentenced the Petitioner on March 31, 1971,

‘and an appeal was timely filed with the Court of Appeals

of the Fifth Circuit.

The defendant was charged with the possession of five

(5) debenture bonds of the Chesapeake and Potomac Tele-

phone Company issued in the nominee or “street” name of

“Cal & Co.”. By business records, the Government proved

that the bonds together with hundreds of other securities

had been mailed on June 13, 1968 from New York to Bos-

ton, but never arrived at their designation. Eleven months

later one of Petitioner’s co-defendants was found in pos-

session of the five (5) debenture bonds in Miami, Florida.

The Government made no claim that Petitioner partic-

ipated in any way in the theft of the bonds. Moreover, proof

of one of the essential and principal elements of the crime

charged, i.e., knowledge of the stolen nature of the bonds

was wholly dependent upon evidence which was entirely

circumstantial.

At the conclusion of the evidence the Court gave this

instruction:

“Possession of property recently stolen, if not

satisfactorily explained, is ordinarily a circum-

stance from which the jury may reasonably draw

the inference and find in the light of the surround-

ing circumstances shown by the evidence in the

case that the person in possession knew the prop-

erty had been stolen.” (T 1322)

It was not until May 8, 1969 that the debentures, being

only a small part of the items mailed June 18, 1968 and

not received, were discovered in the possession of Peti-

tioner’s co-defendant.

6

ARGUMENT

WHETHER EVIDENCE OF POSSESSION OF

STOLEN NEGOTIABLE SECURITIES,

ELEVEN MONTHS AFTER THEFT, PER-

MITS THE TRIAL COURT TO CHARGE THE

JURY THAT A REASONABLE INFERENCE

MAY BE DRAWN THEREFROM THAT THE

POSSESSOR KNEW THE SECURITIES

WERE STOLEN.

The issue here presented is a simple one. It is the

Petitioner’s contention that the stolen property involved

does not constitute recently stolen property.

While it is conceded that “recent” is a relative term

without fixed meaning, a proper line must be drawn as a

matter of law beyond which no jury should be permitted

to regard property as recently stolen.

The giving of the Court’s instruction under the factual

situation presented in the case sub judice was error. The

inference permitted by an unexplained possession of stolen

property is an extremely powerful inference and becomes

a substitute for direct proof of guilty knowledge. When it

is permitted to be applied in a situation in which possession

of the stolen items is so remote in point of time as to be

totally lacking in rational connection between the unex-

plained possession and knowledge of the theft, as in case

of the Petitioner, his rights under the due process clause

of the Constitution of the United States are violated.

We are aware of the decision of the Fifth Circuit

Court of Appeals in the case of United States v. Cameron,

7

460 Fed.2d 1394 (1972), whereby a conviction of the

offense of receiving stolen currency was reversed on the

basis that an instruction, similar to the one given the jury

in the case involving the Petitioner, was improper. The

instruction was struck down because it permitted the Gov-

ernment to pyramid the requisite element of knowledge on

top of the requisite element of possession without the neces-

sity of the Government coming forward with a single

additional evidentiary fact bearing on knowledge by the

defendant of the stolen character of the money involved.

We are further aware that the Fifth Circuit Court of

Appeals in denying Petitioner’s Petition for re-hearing

stated that the case of Barnes v. United States, 37 L.Ed.2d

380, 93 S.Ct. __, U.S. ___, #72-5443, decided by

this Court June 18, 1973, had been resolved against the

Petitioner on the issue presented in his Petition for re-

hearing based on United States v. Cameron. The Court of

Appeals having delayed its disposal of the Petitioner’s re-

hearing application pending this Court’s final decision in

the Barnes v. United States case.

However, Petitioner contends that the case sub judice

is distinguishable from Barnes v. United States and the

Court of Appeals failed to recognize this distinction. The

distinction consists of the fact that almost a year transpired

from the date of the theft to the date of the possession of

the stolen property by one of the Petitioner’s co-defendants.

Barnes v. United States dealt with a factual situation

in which the defendant obtained possession of government

checks which were mailed by the United States Disbursing

Office at San Francisco on July 1st and July 3rd, 1971.

The checks were deposited by the defendant in an account

which he controlled on July 8th, this was seven (7) days

after the theft or, in fact, the posting of the checks which

it was claimed failed to reach the designated payees.

Barnes. v. United States does not deal with a situation in

which eleven (11) months separates the theft or loss of

the checks to the date of deposit or receipt by the defendant.

It is submitted that if such a factual situation had been

presented, this Court could not have come to the conclusions

set forth in the Opinion in Barnes v. United States.

While the Petitioner agrees with the able dissents

expressed by Justices Douglas, Brennan and Marshall as

expressing the true interpretation of the intent of the Bill

of Rights; the majority opinion cannot be applied to the

case sub judice because it is completely lacking in any rea-

sonable delimiting outlook on the application of the mean-

ing of “recently stolen.”

If the Barnes v. United States Opinion is to be accepted

and applied in all cases involving the possession of stolen

items some judicial limitation must be placed upon the

term “recently.” To submit to the unbridled and unin-

structed discretion of the jury, a determination of this

term, is to permit the jury to convict a defendant upon

insufficient evidence or upon an inference based upon

another inference, so remote as to be practically impercep-

tible. This procedure strikes at the very heart of the basic

safeguards of our system of criminal jurisprudence.

Petitioner does not insist that the limit on “recently”

be placed at one month, two months or six months, the

objection is to the fact that this instruction as now given

has no limitation and could be conceivably given in a situa-

tion where ten years separated the theft and the possession.

It destroys completely any significance which can be attrib-

uted to the word “recently” and causes such an instruction

to have no distinction from an instruction which completely

omits the word.

The uncertainty of this condition should not be per-

. mitted to stand and in the case sub judice, failure of the

Court to limit the term “recently” was highly prejudicial

and constituted error’ which the Court of Appeals failed

to recognize in its desire to be guided by Barnes v. United

States.

The practical effect of the instruction with reference

to Petitioner was to permit the jury to convict the Peti-

tioner upon their own uninstructed determination of “re-

cent.” It had the effect of authorizing the jury to rely

exclusively on the inference, however remote, in determin-

ing the element of knowledge of the stolen property and

relieved the Government of the burden of proving the ele-

ment of knowledge beyond a reasonable doubt.

The Petitioner submits that this action violates the

principles enunciated in In Re Winship, 397 U.S. 358, 25

L.Ed.2d 368, 90 S.Ct. 1068 (1970), which case firmly

re-established the principles that the due process of law

requires proof beyond a reasonable doubt of every fact

necessary to constitute the crime.

The jury in the case involving the Petitioner was left

to the device of drawing upon their “common sense” and

this simply was not sufficient to permit the inference,

under the circumstances that were involved, that the pos-

sessor of stolen securities knew that the same were stolen.

Leary v. United States, 395 U.S. 623, L.Ed.2d 57, 89 S.Ct.

1532 (1969).

2 y ee ihe he

BAe 3

10

CONCLUSION

The instruction with reference to the possession of

recently stolen property, creating thereby an inference that

the possessor of the property knew it to be stolen, given

to the jury without any limitation or definition of the term

“recently” was improper and harmfully prejudicial. Such

an instruction, if permitted to be used without limitation,

will seriously impair our system of criminal justice. The

issue demands an exercise of this Court’s power of super-

vision and a Writ of Certiorari should, therefore, issue to

review the Judgment and Opinion of the Fifth Circuit

pertaining to this Petitioner.

Respectfully submitted,

VARON and STAHL, P.A.

2432 Hollywood Boulevard

Hollywood, Florida 33020

and

JOHN W. PRUNTY, ESQ.

837 City National Bank Bldg.

Miami, Florida 33130

Counsel for Petitioner

By:

“11

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the within

Petition for Writ of Certiorari to the United States Court

of Appeals for the Fifth Circuit was mailed this ___ day

of , A.D., 1973, to the following:

Office of the United States Attorney

300 Ainsley Building

14 N.E. 1st Avenue

Miami, Florida

KELLY, BLACK, BLACK & KENNY, P.A.

| 1409 Alfred I. duPont Bldg.

Miami, Florida 33131

Counsel for Pedro Martinez

GEORGE D. GOLD, ESQ.

Suite 511, Biscayne Bldg.

Miami, Florida 33130

Counsel for A. Earl Walters

INDEX TO APPENDIX

Page

OPINION OF THE COURT OF APPEALS App. 1

ORDER DENYING PETITION FOR RE- ;

HEARING AND HEARING EN BANC __ App. 20

INDICTMENT App. 21

Sri.

APPENDIX

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 71-1673

| UNITED STATES OF AMERICA, )

Plaintiff-Appellee

versus

PEDRO M. MARTINEZ, A. EARL WALTERS

and BERNARD BERMAN,

Defendants-Appellants.

Appeals from the United States District Court

for the Southern District of Florida

(September 11, 1972)

Before WISDOM, GODBOLD and RONEY,

Circuit Judges.

RONEY, Circuit Judge: We affirm the convictions

of all three defendants for conspiracy and possessing

securities stolen from the mails. 18 U.S.C. §§371, 1708

and 2.

$500,000 worth of Chesapeake and Potomac Telephone

Company bonds were shipped by registered mail from

Bankers Trust Company of New York to First National

Bank of Boston. They never arrived. Eleven months later

on

App. 2

the same debentures were delivered to Jefferson National

Bank of Miami Beach in connection with a purchase for

which Jefferson was to act as escrow agent. A check on the

validity.of the securities resulted in the F.B.I. and postal

inspectors being informed. This prosecution resulted. Mar-

tinez, Walters, and Berman were each convicted of con-

spiracy to receive and possess securities stolen from the

mails and of the substantive offense of receiving and pos-

sessing securities stolen from the mails,

It is unnecessary to recite the details. A general view

of the evidence finds defendant Berman discussing with

other co-conspirators the disposition of stolen securities,

among which were the Chesapeake and Potomac bonds.

Subsequently, defendant Martinez opened an account at

Jefferson National in the name of Associated Insurance

Investors, Inc., a corporation for which Martinez and

defendant Walters were listed as officers, and “care of

Bernard Berman” was listed as an address. An accounting

4 firm was asked to prepare a balance sheet for Associated

which they were told was needed in order for Associated to

purchase an English insurance company. The balance sheet

'® reflected $500,000 as “funds held in escrow, purchase Pen-

dragon Company,” which figure was supplied by Martinez.

A check for $50,000 was drawn on the Associated account

in Jefferson National payable to the order of Martinez,

‘@ signed by both Martinez and Walters. The check was en-

‘§ dorsed in exchange for a cashier’s check payable to Bernard

= Berman, which he cashed. He gave the $50,000 to Robert

§ Cardillo, who together with Vincent Teresa, was in posses-

sion of the stolen securities involved in the first conversa-

tions with Berman. Three days later the bonds were deliv-

ered to Jefferson National with escrow and other documents

@concerning the purchase of Pendragon. Thereupon the

App. 3

validity check was made and the stolen character of the

bonds was discovered.

Each defendant asserts different grounds for reversal.

BERMAN

Appellant Berman raises two issues on his appeal:

first, that prejudicial remarks by the prosecutor in his

closing argument violated appellant’s right to a fair trial;

and second, that testimony of a government witness was

inadmissible and destroyed appellant’s character before

his character was placed in issue.

(1) Prosecutor’s Remarks

During the course of his closing argument, the prosecu-

tor remarked:

“Because old lawyer Berman was fixer lawyer

Berman and old lawyer Berman’s purpose in the

entire conspiracy was to arrange to get the legal

maneuvering set up, the corporate set up to

satisfy the British Board of Trade.”

No objection was made at the time to the prosecutor’s

remarks. Later in the argument counsel for Berman, while

making another objection, as an afterthought, made a

delayed objection to the use of the term “fixer.” The court

then instructed the jury that it was to disregard any

reference to the term “fixer,” was to base its decision

solely on the evidence in the case and the law, and was

not to base its decision on characterizations by the gov-

ernment attorney.

App. 4

Considering the prosecutor’s statement as a whole and

the court’s cautionary instructions given when requested,

we find no reversible error."

Further in his argument, the prosecutor made two

references to Berman’s having lied on the stand and a

government witness having told the truth. Counsel for

Berman failed to object to these remarks at the time. He

urges now, however, that the prosecutor was stating his

individual belief in the guilt of the accused and that such

belief was based on evidence not before the jury.

The law is clear that a prosecutor’s remarks cannot

imply that evidence not before the jury implicates the

defendant. McMillan v. United States, 363 F.2d 165 (5th

Cir. 1966). Nor can a prosecutor vouch for a witness by

suggesting that the government would not use a witness

unless his credibility was confirmed. Gradsky v. United

States, 373 F.2d 706 (5th Cir. 1967). We do not find either

infirmity in the present case. In McMillan we said that a

prosecutor may express his belief in the guilt of a defendant

if such belief is based solely on the evidence introduced

and the jury is not led to believe that other evidence justifies

that belief. We read nothing more in the prosecutor’s

statement than an attempt to point out the apparent in-

consistencies in Berman’s testimony.

(2) Testimony of Government Witness

The government made an in camera proffer that the

testimony of Vincent Teresa would deal with conversations

'Berman cites to us a case in which the prosecutor’s remarks were

clearly prejudicial. See Getchell v. United States, 282 F.2d 681 (Sth

Cir. 1960). But compare United States v. Crane, ——— >

(5th Cir. 1971) [No. 30229, June 14, 1971].

» OS mere

’ App. 5

and transactions that took place in early 1969, approxi-

mately three months before the date the indictment alleged

to be the beginning of the conspiracy. The court allowed

such testimony to go to the jury for the purpose of showing

knowledge and intent on the part of Berman.

The general rule is that evidence of prior criminal

activity of a similar nature is inadmissible to prove the

commission of a later offense. Michelson v. United States,

335 U.S. 469 (1948). There is, however, an exception to

the general rule. When “intent and knowledge are essential

elements of the crime for which the defendant is being

tried, evidence of other transactions, even though criminal

in nature, is admissible to prove the necessary criminal

intent or guilty knowledge, if the transactions are so con-

nected with the offense charged that they serve to show

a general pattern.” Gilstrap v. United States, 389 F.2d

6, 9 (5th Cir. 1968), cert. den. 391 U.S. 913 (1968).

Berman says that the theory of the government’s case

was that he had participated in a complicated plan to use

stolen securities as collateral for the purpose of buying

and maintaining a British insurance company but that

Teresa was barred from referring to the insurance com-

pany scheme because the trial judge had determined that

such reference would be prejudicial to one of the other

co-defendants. Under these circumstances, Berman argues

that Teresa’s testimony was irrelevant and prejudicial to

him in that there was no similarity as far as scheme or

plan in that testimony and the evidence adduced at trial

by the government relative to the method used to dispose

of the securities.

Briefly stated, Teresa testified to conversations and

App. 6

transactions between Berman, himself, and another about

the disposition of the stolen securities. This testimony was

directly related to the crimes charged against Berman in

both point of time’ and factually.’ Simply because Teresa

was not allowed to testify as to one point of the discussion,

ie., the buying of a British insurance company, does not

vitiate the relevance and probative value of the evidence

given as to Berman’s intent and knowledge in connection

with his participation and involvement in the overall plan

or scheme.

This testimony comes well within the Gilstrap excep-

tion admitting such evidence of a general pattern of

criminal activity for the purpose of showing intent and

knowledge.

WALTERS

Appellant Walters raises four issues: first, insuffi-

ciency of the evidence to link him to the conspiracy; second,

the testimony of government witness Teresa was so prejudi-

cial to him that a severance should have been granted;

third, error in refusing to give an “aider-abettor” instruc-

tion to the jury; and fourth, insufficiency of evidence of

a conspiracy involving Walters prior to the admission

against him of a statement made by a co-conspirator.

?Teresa testified that the conversations with Berman commenced

within two or three months of the beginning date of the conspiracy

charged in the indictment.

’Teresa testified that (1) the conversations dealt with stolen stocks

and bonds, (2) Bobby Cardillo was present and took part in the con-

versations, (3) the formation of a phony corporation was discussed

(4) they discussed the naming of the corporation, and (5) they con-

sidered naming the corporation Cal & Co., which was one of the street

names on the stolen bonds. This testimony was substantially corroborated

by other evidence introduced at trial.

App. 7

(1) Sufficiency of Evidence

In deciding the sufficiency of the evidence we must

take the view most favorable to the government. Glasser

v. United States, 315 U.S. 60 (1942). And, of course, when

the evidence relied on is circumstantial, we must determine

\ whether the trier of fact might reasonably find that the

. evidence excludes every reasonable hypothesis except that

i of guilt. United States v. Manuel Sidan-Azzam,

F.2d_______ (5th Cir. 1972) [No. 71-2109, April 7, 1972).

The evidence shows the following:

Walters was the Secretary-Treasurer of Asso-

ciated Insurance Investors, Inc., a Nevada cor-

poration, of which Martinez was President.

Walters signed a trust agreement between Asso-

ciated and Jefferson National Bank of Miami

Beach in which some stolen securities were as-

signed to Jefferson National as Trustee. He

signed an attorney-in-fact agreement dated May

8, 1969, between Associated and Berman wherein

Berman was authorized to exercise the power of

direction under the Trust Agreement. Associated’s

lease of a suite was signed by Walters. His

\ mortgage broker office was maintained in Asso-

y ciated’s suite. A check drawn on Jefferson Na-

’ tional payable to check drawn on Jefferson Na-

tional payable to Martinez was signed by Walters.

He signed the corporate resolutions of Associated

dated April 14, 1969, and filed with Jefferson

National. Walters made three trips to Alaska

with Martinez and a co-conspirator, who paid for

his passage. He was one of the officers of Asso-

ciated present when Berman first met with them.

Nae? aoe im re

: Sie PF

App. 8

Viewed most favorably to the government, this evi-

dence against Walters was such that the jury could decide

beyond a reasonable doubt that he was involved in the

conspiracy.

(2) Teresa’s Testimony

Teresa testified as to conversations between himself,

Berman and others. This testimonial evidence was in-

troduced against Berman. The court instructed the jury

on three occasions—all critical points in the trial—not to

consider Teresa’s testimony against any defendant but

Berman. In these circumstances, we think it was entirely

within the jury’s capacity to follow the court’s instructions.

Blachly v. United States, 380 F.2d 665 (5th Cir. 1967).

Separate trials are not automatically required where

some of the evidence is not admissible against a particular

defendant. Opper v. United States, 348 U.S. 84 (1954).

A motion for severance is addressed to the sound

discretion of the trial court. The exercise of that discretion

will not be overruled unless it was clearly abused. United

States v. Dryden, 423 F.2d 1175 (5th Cir. 1970), cert. den.

398 U.S. 950 (1970).

Considering the record as a whole, we do not find an

abuse of discretion by the trial court in denying Walters’

motion for severance.

(3) “Aider-Abettor” Instruction

Walters requested an instruction spelling out the re-

quirements for a conviction as an aider and abettor, citing

Moore v. United States, 356 F.2d 39 (5th Cir. 1965).

- App. 9

The court was not in error in denying this charge with

the note that this was not in issue. Walters was not charged

as an aider and abettor, but as a conspirator. Once it is

established that a person is a member of a conspiracy,

any act by a co-conspirator in furtherance of the conspiracy

is attributable to him. Pinkerton v. United States, 328

U.S. 640 (1946). In order to convict Walters of the sub-

stantive count, it was not necessary to prove that he aided

and abetted the possession of the securities. The govern-

ment need prove only that Walters’ co-conspirator possessed

the securities in furtherance of the conspiracy.

(4) Evidence of Co-Conspirator’s Statement

Walters’ last contention is that there was not sufficient

evidence of a conspiracy involving him at that point in

the trial when a government witness, Kalinsky, was allowed

to testify about a statement made by an alleged co-

conspirator.

It is true chat hearsay statements are inadmissible

when no independent evidence links the declarant to the

defendant or to the conspiracy. Glasser v. United States,

supra; United States v. Bey, 437 F.2d 188 (3rd Cir. 1971) ;

United States v. Calabro, 449 F.2d 885 (2nd Cir. 1971) ;

United States v. Geaney, 417 F.2d 1116 (2nd Cir. 1969) .

United States v. Borelli, 336 F.2d 376 (2nd Cir. 1964).

_ However, Kalinsky was the government’s last witness of

substance. Prior to his testimony the court had before it

substantially all of the evidence against Walters which we

have held was sufficient to show that he was involved in

the conspiracy. This meets the test required for admission

of Kalinsky’s testimony.

App. 10

. MARTINEZ

A t Martinez asserts the following grounds for

reversal: (1) the government’s proof exceeded the confines

of its Bill of Particulars; (2) he was prejudiced by being

tried with Berman; (3) the government did not prove

that Martinez knew the securities were stolen from the

mail; (4) the court’s instruction on inference from pos-

session should not have been given; and (5) the indictment

returned solely on the basis of hearsay evidence should

have been dismissed.

(1) Proof Beyond Bill of Particulars

Martinez contends that the government’s evidence

showed that witness Teresa was a co-conspirator. Since

Teresa was not so named in the Bill of Particulars, the

argument is that the proof exceeded the confines of the Bill.

The purposes of a Bill of Particulars are to inform

the defendant of the nature of the charge against him with

sufficient precision to enable him to prepare his defense,

and to avoid or minimize the danger of surprise at trial.

United States v. Bearden, 423 F.2d 805 (5th Cir. 1970),

cert. den. 400 U.S. 836 (1970). Martinez claims surprise.

Teresa’s testimony was introduced by the government

for the sole purpose of showing intent and knowledge on

the part of Berman, and the testimony was so limited by

the court.

The record reflects that the prosecutor did not know

of Teresa’s existence until the day the trial commenced,

and Teresa was not interviewed until the eve of his testi-

chinese eatin

CT nh cl!

App. 11

mony. The prosecutor then informed defense counsel of

his intention to call Teresa as a witness, turned over to

defense counsel material for use in cross-examination, and

proffered Teresa’s entire testimony.

It is obvious that the prosecutor could not have sup-

plied Teresa’s name before he had knowledge of his in-

volvement. The issue then is whether Martinez’ substan-

tial rights were prejudiced in any way by the court’s

allowing Teresa to testify. See Wong Tai v. United States,

273 U.S. 77 (1927).

The prosecutor informed counsel of his intention to call

Teresa as soon as practicable after learning of his existence

and his relationship to Berman. Materials for cross-exami-

nation of Teresa were given counsel and Teresa’s entire

testimony was proffered during an extended in camera

hearing. The testimony was considerably limited by the

court.

In these circumstances we do not think that Martinez’

substantial rights were prejudiced by the court’s allowing

Teresa’s testimony.

(2) Severance

Martinez alleges he was prejudiced by being tried

with Berman because (a) their defenses conflicted, (b)

the jury was not able to avoid considering Teresa’s testi-

mony against Martinez, and (c) the prosecutor in re-

buttal used Teresa’s testimony to prove one of the essential

elements of the crime against Martinez.

App. 12

‘5 ‘/Rule’14:of the Federal Rules of Criminal Procedure

provides. that:

“Tf it appears that a defendant . . . is prejudiced

by a joinder of offenses or of defendants in an

indictment or information or by such joinder for

trial together, the court may order an election or

separate trials or counts, or grant a severance of

defendants or provide whatever other relief

justice requires.”

The trial court’s decision to deny a motion for severance

will not be overturned absent an affirmative showing of

abuse of discretion. Blachly v. United States, supra. Specu-

lative allegations as to possible prejudice do not mean the

burden of such affirmative showing. See Gordon v. United

States, 488 F.2d 858 (5th Cir. 1971).

In support of his claim of prejudice, Martinez says in

his brief that if he had testified, his testimony would con-

flict with the testimony of Berman on certain facts in the

case. He argues that such conflict prevented him from

testifying in his own behalf. This argument is speculative.

In United States v. Robinson, 432 F.2d 1348, 1351 (D.C.

Cir. 1970), the court said:

“In order to demonstrate abuse of discretion by a

trial judge, one must show more than the fact that

co-defendants whose strategies were generally

antagonistic were tried together... . At the very

least, it must be demonstrated that a conflict is

so prejudicial that differences are irreconcilable,

and ‘that the jury will unjustifiably infer that

this conflict alone demonstrates that both are

guilty.’ ”

eR a UR ane te

le a oman

App. 18

The logical significance to be drawn from Robinson is that

conflicts among defendants do not per se require severance.

Martinez is thus left to show affirmatively an abuse of

discretion on the part of the trial court in denying sever-

ance. We do not think he has met that burden.

Martinez’ claim that the jury was incapable of con-

sidering Teresa’s testimony only against Berman is un-

meritorious for the reasons given in our discussion of

Walters.

It is claimed that the prosecutor used the testimony

of Teresa against all three defendants in his rebuttal

argument. It is the court’s job to inform the jury as to

what evidence should be considered against a defendant.

The court fully instructed the jury regarding the effect

of Teresa’s testimony.

(3) Knowledge That Securities Stolen

Martinez suggests that this Circuit requires proof of

knowledge on his part that the securities were actually

stolen from the mails in order to convict him of violating

18 U.S.C. §1708. He relies principally on our decision in

Allen v. United States, 387 F.2d 641, 642 (5th Cir. 1968),

wherein Judge Bell wrote:

“To procure a conviction in a case such as this

the prosecution must show possession on the part

of the defendant, that the letter was stolen from

the mails, and that the defendant knew the letter

and its contents had been so stolen.”

The argument is made that the word “so” modifies “stolen

= App. 14

from the mails” thus making knowledge that the securities

were stolen from the mail a legal requirement.

‘MP his was not the import of the Allen decision. We

held in Allen that there was no evidence that the defend-

ant or anyone else had actually stolen the letter from the

mails. Martinez’ situation is different. There was suf-

ficient evidence adduced at the trial to show that the

securities were actually stolen from the mails. This being

so, it was only necessary to show that Martinez had pos-

session of the securities, knowing them to be stolen. This

principle is set forth in United States v. Hines, 256 F.2d

561 (2nd Cir. 1958), which we cited favorably in the Allen

case. Hines involved a factual situation similar to the case

at bar and clarified the law with regard to Section 1708

as follows:

“he defendant claims that these facts do not

constitute a violation of 18 U.S.C. §1708, which,

he contends, requires that the accused know that

the mail matter was stolen from an authorized

mail depository, and not just stolen. Prior to

1989, the statute supported the defendant’s argu-

ment. * * * But in that year the statute was

amended to require only that the defendant know

that the mail matter in his possession was stolen.

53 Stat. 1256. And Congress passed this amend-

ment to alleviate the almost impossible burden

cast upon the government under the prior Act to

show that an accused knew how the mail in his

possession was stolen. H.R. Rep. No. 734, 76th

Cong., 1st Sess.; Sen. Rep. No. 864, 76th Cong.,

1st Sess.

App. 15

To secure a conviction here, therefore, the prose-

cution had to show that the check actually had

been stolen from the mails and that the defend-

ant unlawfully possessed it, knowing that it was

stolen.”

(4) Instruction Concerning Possession of Recently Stolen

Property

The court instructed the jury that it could draw an

inference as to knowledge of theft from the unexplained

possession of recently stolen property. Martinez alleges

error in this charge on the basis that the eleven months

between the mailing of the securities and his alleged pos-

Session is not indicative that the securities had been re-

cently stolen. The argument continues that such a hiatus

vitiates, as a matter of law, the rational basis on which the

jury could make the proper nexus between unexplained

possession and knowledge of theft. He cites the following

language from Hale v. United States, 410 F.2d 147, 150

(5th Cir. 1969) ;

“The inference allowed by unexplained posses-

sion is a powerful one. It is a substitute for direct

proof of guilty knowledge and courts, both trial

and appellate, should proceed with extreme care

in determining whether the evidence sufficiently

establishes a basis for the inference,”

After giving this cautionary admonition and stating that

the issue of what constitutes “recent” is a jury question,

the court goes on to Suggest the standards under which

the inference may be allowed:

App. 16

“There is a likewise certain period after which

an inference of guilty knowledge cannot be ra-

tionally inferred from unexplained possession.

Whether this period has expired is a question

for the trial court to determine before giving

the case to the jury. In reaching its determina-

tion, the trial court need not be oblivious to other

evidence pointing to the accused’s guilt; to the

contrary, it is free to judge the reasonableness

of the inference in the context of all the evidence.

Approaching the case sub judice in this manner,

we conclude that the trial court did not err in

allowing the jury to infer guilty knowledge from

the appellant’s unexplained possession of the auto-

mobile. To be sure, the lapse of six months and

nineteen days substantially weakened the infer-

ence of guilty knowledge, but when the appel-

lant’s unexplained possession is analyzed in the

context of a factual setting as fraught with sus-

picion as the one in this case, the inference is

strengthened and doubt as to its reasonableness

fades. Accordingly, we hold that the evidence

against the appellant fairly included the infer-

ence to be drawn from unexplained possession

of recently stolen property, and that the appel-

lant’s motion for a directed verdict of acquittal

was properly denied.” 410 F.2d at 151.

Under the Hale standards and considering the evidence

against Martinez which was before the court, we do not

find error in the instruction.

(5) Indictment Based on Hearsay

P OBUA ED. EOE only) i es WAI ied Unto on wee Biv ACW

PE OR) WAS RENO MI 12 Share BES.

App. 17

Prior to trial and at trial, Martinez moved to dis-

miss the indictment because it was based on hearsay testi-

mony. In the alternative, he requested a hearing on its

validity. After consideration, the court denied the motions

without a hearing.

We view this claim as an attempt to litigate the suf-

ficiency of the evidence presented to the grand jury. This

has been foreclosed by the Supreme Court in Costello v.

United States, 350 U.S. 359 (1956).

The judgment as to each appellant is affirmed.

AFFIRMED.

GODBOLD, Circuit Judge, Specially Concurring:

I concur in the result and add one point.

The court charged on the familiar rule that if a de-

fendant is in possession of recently stolen property and

does not explain his possession the jury is entitled to infer

that he has knowledge of its stolen character. As to the

defendant Martinez this charge just barely escapes being

error, considering the lapse of eleven months between the

disappearance of the securities and Martinez’s transactions

relating to them. But the court then charged that if the

government had shown: (a) mailing and nonreceipt of the

securities; (b) possession of them by a defendant; and

(c) knowledge by the defendant that they were stolen, then

the jury could infer that the sesurities were stolen from the

mails. Martinez correctly asserts that this charge was

error.

App. 18

Learned Hand put it in U. S. v. Bollenbach, 147 F.2d 199,

202 (2d Cir.), rev’d on other grounds 326 U.S. 608 (1946) :

It is of course possible that a man, dealing in

stolen securities, and knowing or suspecting that

they have in fact been stolen, may inquire where

the seller got them; but it is more likely that he

will not wish to do so. Inquiry is apt to add to

that information any evidence of which he will

at all hazards wish to suppress; it will be safer

to take the securities as they are presented than

to meddle into their source.

The tenuous nature of the “stolen from the mails”

inference is even more attenuated than usual in the present

ease because one of the underpinnings — knowledge that

the securities were stolen — was itself an inference that

the jury was allowed to draw at the very outer limits of

its rationality. This case is one of those rare ones in which

the plaint of “inference or an inference” is substance ra-

ther than shibboleth.

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App. 20

(TrTLE OMITTED]

ON PETITION FOR REHEARING AND PETITION

FOR REHEARING EN BANC

Before WISDOM, GODBOLD and RONEY,

Circuit Judges. —

PER CURIAM: Berman reasserts in his Petition

for Rehearing and Petition for Rehearing En Banc his

contention that Teresa’s testimony should not be admitted

at all, but we have previously decided that this evidence

was properly admitted against him.

Barnes v. United States, _ U.S. — [No. 72-5443,

13 Crim. L. R. 3153, June 18, 1973], has now resolved

against the appellant the argument for rehearing based on

United States v. Cameron, 460 F.2d 1394 (5th Cir. 1972).

The Petition for Rehearing filed on behalf of Bernard

Berman is DENIED and no member of this panel nor

Judge in regular active service on the Court having re-

quested that the Court be polled on rehearing en banc, (Rule

35 Federal Rules of Appellate Procedure; Local Fifth

Circuit Rule 12) the Petition for Rehearing En Banc is

DENIED.

ie ee

oe -#

NN NE ae Sele ale

on 9

(TITLE OMITTED]

INDICTMENT

The Grand Jury charges:

4

COUNT I

Commencing prior to on or about April 1, 1969, and

continuing through on or about May 9, 1969 in Dade

County, in the Southern District of Florida

PEDRO M. MARTINEZ,

BERNARD BERMAN,

A. EARL WALTERS, and

STEPHEN J. DINNEEN

wilfully and knowingly did combine, conspire, confederate

and agree together and with diverse other persons, unknown

to the Grand Jury, to violate Title 18, United States Code,

Section 1708; that is to say, buy, receive, and unlawfully

have in their possession, securities which had been con-

tained in registered mail and stolen therefrom, knowing

same to have been stolen, taken, embezzled or abstracted;

to wit:

Five 40 year 634% debentures of the Chesapeake

and Potomac Telephone Company of Virginia,

due May 1, 2008, Certificate Numbers R-7-823,

R-7-824, R-7-825, R-7-826, R-7-827 of a maturity

value of $100,000 each, registered in the name of

Cal & Co.

Reha eta

ORY Be eas

= App. 22

or In furtherance of said conspiracy, the defendants com-

mitted the following overt acts:

OVERT ACTS

1. On or about April 1, 1969, Pedro M. Martinez,

Bernard Berman, Alvin Ear] Walters, and Stephen J.

Dinneen met at Anchorage, Alaska, and assumed control

of the Alaska Western Life Insurance Co. and Associated

Insurance Investors, Inc.

2. On or about April 17, 1969 at Anchorage, Alaska,

Stephen J. Dinneen drew Check No. 8431 on the account

_ of Alaska Western Life Insurance Co. at the First National

Bank of Anchorage, Anchorage, Alaska, in the amount of

$55,000 in favor of Associated Insurance Investors, Inc.,

for the stated purpose of purchasing of United States Steel

Company stock or equivalent.

3. Onor about April 17, 1969, at Anchorage, Alaska,

Pedro M. Martinez endorsed said Check No. 8431.

4. Onor about April 17, 1969, at Anchorage, Alaska,

Pedro M. Martinez caused one Richard S. Derryberry, as

President of Alaska Western Life Insurance Co. to endorse

Time Certificate of Deposit No. 2916, issued by the First

National Bank of Anchorage, Anchorage, Alaska, in favor

of the Alaska Western Life Insurance Co., in the amount

of $70,000.

5. Onor about April 21, 1969, at Anchorage, Alaska,

Pedro M. Martinez caused one Mae Lujan, as an employee

of Alaska Western Life Insurance Co. to present Time

Certificate of Deposit No. 2916 for deposit to the account

Alaska, and Pedro M. Martinez did thereby cause said bank

to forward a sight draft in the amount of $54,990.26 to the

Jefferson National Bank of Miami Beach, Florida, in the

Southern District of Florida for deposit to the account of

Associated Insurance Investors, Inc. at the Jefferson Na-

tional Bank.

6. On or about: April 28, 1969 in the Southern Dis-

trict of Florida, Pedro M. Martinez and A. E. Walters drew

Check No. 118 on the account of Associated Insurance In-

vestors, Inc. at the Jefferson National Bank of Miami

Beach, in the amount of $800.00, payable to Stephen J.

Dinneen, for expenses to cover the cost of securing the

formation of Cal & Co., Ltd.

7. On or about April 30, 1969, Stephen J. Dinneen

paid to King & King, 8 Cavendish Place, London, England,

the sum of $160 for the formation of Cal & Company, Ltd.

8. On or about May 5, 1969, in the Southern District

of Florida, Pedro M. Martinez withdrew $50,000 from the

account of Associated Insurance Investors, Inc. at the Jef-

ferson National Bank of Miami Beach.

9. On or about May 5, 1969, in the Southern District

of Florida, Pedro M. Martinez purchased a cashier’s check

in the amount of $50,000 at the Jefferson National Bank

of Miami Beach, and thereafter delivered said check to

Bernard Berman.

10. On or about May 7, 1969, Bernard Berman

cashed said cashier’s check at the Jefferson National Bank

of Miami Beach and received $50,000 in cash.

App. 24

21. Onor about May 8, 1969, in the Southern District

of Florida, Bernard Berman, Pedro M. Martinez and A. E.

Walters signed an Attorney-in-Fact Agreement between

Associated Insurance Investors, Inc. and Bernard Berman.

12. On or about May 8, 1969, Pedro M. Martinez and

Bernard Berman delivered to the Jefferson National Bank

of Miami Beach, five 40-year Chesapeake and Potomac

Telephone Company of Virginia 634% debentures, Due

May 1, 2008, certificate Nos. R-7-823, R-7-824, R-7-825, |

R-7-826, and R-7-827 of a maturity value of $100,000 each,

registered in the name of Cal & Co., and said Attorney-in-

Fact Agreement.

All in violation of Section 371, Title 18, United States

Code.

COUNT Ii

On or about May 8, 1969, at Miami Beach, Dade

County, in the Southern District of Florida

PEDRO M. MARTINEZ

BERNARD BERMAN

A. EARL WALTERS and

STEPHEN J. DINNEEN

did unlawfully buy, receive, and have in their possession,

securities which had been contained in registered mail and

stolen therefrom, knowing same to have been stolen, taken,

embezzled or abstracted, to wit:

= S000. aD ASP testa SD

Ao treet 52. al

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> OL AAT I. ION ARE Ie 8 tN he hb OR,

tio diane tow

App. 25

Five 40-year 634% debentures of the Chesapeake

and Potomac Telephone Company of Virginia,

due May 1, 2008, Certificate Numbers R-7-823,

R-7-824, R-7-825, R-7-826, and R-7-827 of a

maturity value of $100,000 each, registered in

the name of Cal & Co.

which were the contents of registered letter No. A 20701,

mailed June 13, 1968 at New York, New York, by the

Bankers Trust Company, New York, New York, addressed

to the First National Bank, 67 Milk Street, Boston, Mas-

sachusetts; in violation of Title 18, United States Code,

Sections 1708 and 2.

A TRUE BILL

FOREMAN

WILLIAM A. MEADOWS, JR.

UNITED STATES ATTORNEY

BY William A. Daniel, Jr.

Assistant U. S. Attorney