# Petition for Writ of Certiorari — Berman v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1973
- **Citation:** 414 U.S. 1065

## Text

_

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

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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.

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1024%3A1. Public record. Not legal advice.