United States v. Bollenbach, 40.

• Citation: 147 F.2d 199
• Decision Date: 02 April 1945
• Docket Number: No. 40.,40.
• Parties: UNITED STATES v. BOLLENBACH.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

147 F.2d 199 (1944)

UNITED STATES v. BOLLENBACH.

No. 40.

Circuit Court of Appeals, Second Circuit.

December 5, 1944.

As Modified on Rehearing January 12, 1945.

Writ of Certiorari Granted April 2, 1945.

Leo C. Fennelly, of New York City, for appellant.

Harold J. McAuley and John F. X. McGohey, U. S. Atty., both of New York City, for appellee.

Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

Writ of Certiorari Granted April 2, 1945. See 65 S.Ct. 915.

L. HAND, Circuit Judge.

Bollenbach was indicted upon two counts: for transporting "securities of the value of $5,000" in interstate commerce, knowing them to have been stolen, and for a conspiracy to commit that offence. The jury acquitted him upon the first count, and convicted him upon the second. The errors of which he complains are as follows: (1) That the stolen property was not shown to have been worth $5,000; (2) that the judge's instructions were erroneous; (3) that evidence was admitted against him of other crimes of the same kind; (4) that the evidence did not support the verdict — especially because the transportation had ended before Bollenbach became connected with it; and (5) that incompetent testimony was admitted against him.

The stolen securities were negotiable notes of a corporation in reorganization in the United States District Court for the District of Minnesota; they had been fastened to "proofs of claim" which had been "allowed" by the court, and were on file with its clerk. Some one detached the notes from the "proofs of claim," stole them from the clerk's office, brought them to New York, and sold them for more than $5,000. The argument is that, since a claim in bankruptcy, or in reorganization, becomes a judgment, when it has been "allowed", United States v. American Surety Co., 2 Cir., 56 F.2d 734, 736; Lewith v. Irving Trust Co., 2 Cir., 67 F.2d 855, the notes were merged in the claims, and were valueless when detached. Besides stolen "securities," presumably valid, the statute covers "falsely made, forged, altered or counterfeited securities," and it can scarcely have been the purpose of Congress to exclude a security, originally valid, but later merged in a claim, and yet to include securities void from their inception. A lower limit was set for valid securities to exclude petty thefts; there was none in the case of false securities; and if, as the accused argues, the notes here in question had really been merged, they more nearly approached altered securities than valid ones. They had an actual value of $5,000, as the record shows, even though it was factitious, and would not have survived a full disclosure of the facts.

The second alleged error we shall come back to later; the third consists of the admission of evidence that the accused had been concerned in earlier crimes of the same sort. We are not clear whether the objection is that the evidence was not competent at all, or whether it should not have been admitted after it appeared that the accused had confessed in writing the commission of the earlier crimes. That the commission of earlier crimes of the same kind is always competent on the issue of intent is too well settled to justify the citation of authorities; and it is difficult to see what prejudice the accused could have suffered by calling witnesses to confirm his own written confession. Even if he did, there was no reason not to make assurance doubly sure by supplementing his confession by testimony, for juries often regard confessions with suspicion.

The fourth error is of the insufficiency of the evidence and depends principally upon the supposed incredibility of the testimony of one Chell Smith, who identified the accused as having been in the clerk's office in Minnesota before the theft. Had we been on the jury, we should indeed have laid little weight upon the identification, but clearly its credibility was for the jury and we may not intervene. The fact that the overt acts were all laid at a time after the transportation of the notes had ended in New York presupposes that the accused could not be convicted of a conspiracy which he only joined thereafter. It is more conveniently dealt with in connection with the second point to which we now come; i. e., the judge's charge.

The colloquial charge was unexceptionable; and indeed the accused did not except to it. However, after the jury had been out seven hours and were, in the foreman's words, "hopelessly deadlocked," they came into court to report their disagreement, and during the interchange that followed one of them asked whether "any act of conspiracy" could be "performed after the crime had been committed." The judge failed to answer this question directly, and again the accused did not except. The jury went out a second time, but soon came back; and the accused's attorney then excepted to the judge's earlier failure to answer the question, to which the judge mistakenly replied that he had already told them that there could be no conspiracy after the object of the conspiracy had been...