United States v. Klein

• Decision Date: 21 January 1965
• Docket Number: Docket 28338.,No. 207,207
• Citation: 340 F.2d 547
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth KLEIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

340 F.2d 547 (1965)

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth KLEIN, Defendant-Appellant.

No. 207, Docket 28338.

United States Court of Appeals Second Circuit.

Argued November 20, 1964.

Decided January 21, 1965.

Peter K. Leisure, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty. for Southern District of New York, Andrew T. McEvoy, Jr., and John S. Martin, Jr., Asst. U. S. Attys., New York City, on the brief), for plaintiff-appellee.

Phylis Skloot, New York City (Anthony F. Marra, New York City, on the brief), for defendant-appellant.

Before LUMBARD, Chief Judge, and MEDINA and MARSHALL, Circuit Judges.

MEDINA, Circuit Judge.

On November 2, 1962, the hotel room of Siegbert Katz, a visitor to the United States, was burglarized. Part of the loot consisted of 32 Bank of America Travelers Cheques, which Mr. Katz, following normal procedure, endorsed at the time of purchase while leaving blank counter-signature lines to be filled in by Mr. Katz when the cheques were negotiated. Eight of the cheques were for $50, the remainder for $10. Five days after the burglary the cheques were negotiated in three banks located in downtown New York; they were subsequently received for payment by the Bank of America's San Francisco office.

Three detectives on the Manhattan Burglary Squad observed the activities of appellant Kenneth Klein and his friend, Martin Bluver, on November 7, 1962. In substance, their testimony was that Klein entered a bar on 23rd Street at about 11:00 A.M. and was joined approximately half an hour later by Bluver. The two remained in the bar until 1 o'clock when they walked to a nearby bank. Klein was seen talking to a teller while Bluver, standing a few feet behind Klein, looked towards the rear and door of the bank. No cheques were negotiated in this bank and Klein and Bluver left within five minutes of their arrival. The next stop was another 23rd Street bank where Klein and Bluver conversed while the latter waited on line. Bluver appeared to be holding travelers cheques, none of which were negotiated in this bank.

After a taxicab ride to 14th Street and Second Avenue, Klein and Bluver entered a third bank. A few moments later Klein emerged from the bank while Bluver remained inside in an unsuccessful attempt to negotiate some of the cheques. They immediately went to a fourth bank where Bluver began talking to a bank employee and Klein seated himself several feet away. Klein then approached Bluver and spoke briefly with him. Shortly thereafter Bluver negotiated $250 worth of the stolen cheques, forging the necessary countersignature of Siegbert Katz. Klein and Bluver then adjourned to a nearby bar where they spent about ten minutes in conversation before moving on to the next bank.

Klein waited outside the fifth bank where Bluver succeeded in cashing another $110 of the stolen cheques. They spent the next twenty minutes in a coffee shop and then both entered a sixth bank where no cheques were negotiated. The remaining cheques totalling $280 were cashed in the seventh and last bank. In this bank, Bluver was observed at a writing table while Klein stood off to one side looking around the bank. Upon leaving this bank, Klein and Bluver exchanged money; Klein was seen to give money to Bluver and Bluver to give money to Klein.

Bluver, who pleaded guilty to the charge of illegal interstate transportation of forged securities, was called as a witness by the Government. He completely exonerated Klein and midway through his testimony was declared a hostile witness. The gist of his story was that he had arranged to meet Klein at the 23rd Street bar to celebrate his forthcoming marriage and attend the races at Aqueduct. Upon leaving the bar in a drunken state occasioned by the consumption of ten or more drinks apiece, Bluver recalled that he lacked sufficient funds for the racetrack expedition and requested Klein to accompany him while he cashed some cheques. Bluver professed an inability to recall whether Klein actually went into any of the banks with him, but emphatically denied that Klein had any idea that the cheques were stolen or forged or that Klein had ever seen the cheques. Klein did not testify.

Towards the end of its case, the Government called Sidney Kastner to the stand. Kastner's testimony, strenuously objected to at the trial, presents the principal contention before us for review. It was to the effect that in December 1960 Klein told him that he had access to stolen travelers cheques and proposed that Kastner, in consideration of a share of the proceeds, arrange their negotiation by forging the necessary countersignatures. Kastner continued that during the period between December 1960 and August 1961, he received stolen cheques from Klein on some fourteen or fifteen occasions, that Kastner cashed these cheques and split the proceeds with Klein on a 50-50...