United States v. Edwards

• Decision Date: 12 September 1966
• Docket Number: No. 441,Docket 30345.,441
• Citation: 366 F.2d 853
• Parties: UNITED STATES of America, Appellee, v. Robert EDWARDS, Max Jakob, John J. Lombardozzi and Milton Parness, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

366 F.2d 853 (1966)

UNITED STATES of America, Appellee, v. Robert EDWARDS, Max Jakob, John J. Lombardozzi and Milton Parness, Appellants.

No. 441, Docket 30345.

United States Court of Appeals Second Circuit.

Argued June 20, 1966.

Decided September 12, 1966.

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Edward S. Friedland, New York City, for appellant Robert Edwards.

Stuart A. Jackson, New York City (Royall, Koegel & Rogers, Norman Ostrow, Guy C. Quinlan, New York City, on the brief), for appellant Max Jakob.

Eugene Feldman, New York City (Jaffe & Feldman, Anne Gross Feldman, New York City, on the brief), for appellant John J. Lombardozzi.

Meredith Hemphill, Jr., New York City (Anthony F. Mara, New York City, on the brief), for appellant Milton Parness.

Otto G. Obermaier, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, Michael W. Mitchell, John E. Sprizzo, Asst. U. S. Attys., on the brief), for appellee.

Before WATERMAN, MOORE and KAUFMAN, Circuit Judges.

KAUFMAN, Circuit Judge.

Robert Edwards,¹ Max Jakob, John Lombardozzi and Milton Parness appeal from their convictions for violating the National Stolen Property Act, 18 U.S.C. § 2314, and conspiracy to violate 18 U.S.C. §§ 2314, 2315 (18 U.S.C. § 371). After a three and one-half week trial before Judge Wyatt and a jury, sentences were imposed ranging from imprisonment for one year and one day to four years.² For the reasons set forth below, we affirm.

The indictment, filed on July 1, 1964, was in four counts. Count one charged 16 defendants, including the 4 appellants,³ and 6 co-conspirators not named as defendants⁴ with participation in a conspiracy which encompassed the transportation in interstate and foreign commerce of approximately $1,000,000. in securities stolen from Bache & Co. (Bache), a New York brokerage concern. Count two charged appellants and several other co-defendants with the substantive violation, 18 U.S.C. § 2314, of transporting stolen securities from New York City to Newark, New Jersey. Counts three and four charged other substantive violations of 18 U.S.C. § 2314 involving transportation of stolen securities from New York City to Miami, Florida and from New York City to Denver, Colorado but, prior to and at trial, these counts were dismissed on the government's motion.⁵

Much of the government's case rested on the testimony of defendants Dodge, Pomeranz, Sessler, Gladstone and Markowitz⁶ who testified in its behalf. Viewing, as we must on appeal, all the evidence presented and the reasonable inferences flowing therefrom in the light most favorable to the government, United States v. Kahn, 366 F.2d 259 (2d Cir. 1966); United States v. Robbins, 340 F.2d 684 (2d Cir. 1965); United States v. Kahaner, 317 F.2d 459, 467 (2d Cir.), cert. denied, 375 U.S. 836, 84 S.Ct. 74, 11 L.Ed.2d 65 (1963), a mosaic of cunning and nefarious crime emerges. In order to avoid obfuscating the rather involved facts, it is useful before presenting a detailed review of the evidence, to summarize the government's case and to outline in skeleton form the manner in which the alleged conspiracy operated and the way in which each appellant was implicated in the substantive and conspiracy counts.

The first link in the alleged conspiracy chain was Gordon Tallman, an employee of Bache, who, over a period of time, stole approximately $1,000,000 of "bluechip" securities registered in the firm's name and turned them over to Robert Dodge for distribution and ultimate sale. Dodge passed these securities to Alan Pomeranz who, in turn, gave them to Robert Edwards. During June and July 1962, Edwards distributed various quantities of the stock to Milton Parness who brought Fred Sessler and Sheldon Lowe into the scheme hoping to utilize their brokerage connections. However, they thought it advisable to deal with Max Jakob, who also was familiar with the disposition of stock and who was in need of funds for his ailing enterprise. Jakob turned for aid to William Gladstone, his business associate and attorney, who obtained assistance from his law partner, Bert Markowitz.

Devising a plan which required a so-called "small man" and "big man" to dispose of the stock, Gladstone obtained approximately $60,000 of Bache purloined stock which had been passed down the line from Tallman to Jakob. Gladstone turned these securities over to Benjamin (Buddy) Clott, the "small man," who attempted to sell them, with the aid of Isidore Gorlitsky, through the brokerage facilities of Kesselman & Co. Gorlitsky was arrested, however, on July 2, 1962, after the certificates which he had presented were identified as missing from Bache.

Gladstone also utilized the services of John Lombardozzi, his "big man," to distribute the stock. Lombardozzi's attempt, with the aid of an unidentified and unapprehended co-defendant, "Robert Francine," to sell other purloined Bache securities through the brokerage houses of L. P. Denenberg & Co. and S. P. Levine & Co. failed on July 9 when it was discovered that Bache had impaired the negotiability of the stock through the use of stop orders.

Despite these events, however, arrangements were made to transact a sale of a large portion of the stolen stock on July 20 at the Robert Treat Hotel in Newark, New Jersey. The prospective purchaser was secured by Clott and identified as a buyer from the West Coast. Actually, he was an agent of the Federal Bureau of Investigation acting under cover. The attempted sale in the New Jersey hotel led to the apprehension of the participants in the scheme and its eventual termination.

Because appellants vigorously challenge the sufficiency of the evidence underlying their convictions, we proceed to expand and present in greater detail the involved and complex and sometimes confusing facts.

The seeds of the alleged conspiracy were sown in November 1961 when defendant Gordon Tallman met defendant Robert Dodge in the "Tap Room" of the Hotel Taft. In the course of their conversation, Tallman informed Dodge that he had access to the vault of his employer — a Wall Street brokerage house⁷ — and could obtain for disposal undetected, virtually any amount of negotiable securities he desired.

But, this meeting did not bear fruit immediately. It was not until April 1962 when Dodge met Tallman and co-conspirator, Francine Pomeranz,⁸ that Mrs. Pomeranz suggested that Tallman steal some stock which Dodge could hypothecate for their mutual profit. After waiting for Bache auditors to complete a periodic audit, Tallman, approximately ten days later, appropriated a certificate representing 100 shares of General Motors stock registered in the name of one "Smythe" and turned it over to Dodge. But, this prologue to the alleged conspiracy ended in failure. Dodge was unable to negotiate the stock by using it as collateral for a loan because he did not have proper identification; ultimately, Dodge burned the certificate.

Undeterred by this initial lack of success, Francine suggested that her husband, defendant Alan Pomeranz, was able to distribute stolen stock. It was agreed that Dodge would act as a "middle-man" so that Tallman and Pomeranz could avoid dealing directly with one another.

In the latter part of May 1962, Pomeranz encountered appellant Robert Edwards outside the Stage Delicatessen, a restaurant in Manhattan, and asked Edwards if he would be interested in participating in the disposal of some stolen securities. After learning that as much as $200,000 to $500,000 worth of certificates might be involved, Edwards counseled that it was imprudent to continue the conversation on a public street and suggested that Pomeranz contact him in a few days.

Accordingly, in late May or early June, Pomeranz called Edwards and was invited to the latter's Central Park West apartment. Edwards told Pomeranz he was interested in the proposed transaction and they proceeded to discuss its additional aspects. Indeed, Edwards stated that he had already contacted someone in connection with the deal. Edwards went on to suggest that certificates registered in a street name be obtained, and Pomeranz observed that since the stock was to be acquired from a New York brokerage house, it would be advisable to dispose of the stock away from New York. Edwards and Pomeranz also agreed to "make it a one-shot deal and take as much as they could get." Estimating that they could realize 15%-20% of face value, they decided to obtain $1,000,000 worth of "blue-chip" securities; to make detection of their plan difficult, they agreed not to disclose their respective contacts to one another.

Meanwhile and during this same period, appellant Milton Parness met defendant Fred Sessler at the Debonair Restaurant in Manhattan and discussed the possibility of employing Sessler's brokerage firm, Fred F. Sessler & Co., to dispose of the stolen securities. After speaking to his partner, defendant Sheldon Lowe, however, Sessler advised Parness that his firm was inadequate for the task and suggested that arrangements with appellant Max Jakob could be made. Sessler also noted that stolen securities registered in a "street name" as distinguished from an individual's name would be readily negotiable.⁹

The day following his meeting with Edwards, Pomeranz phoned Tallman and described the "one-shot" nature of the proposed transaction. Tallman indicated that he would have no difficulty appropriating $1,000,000 of stock registered in a street name and was willing to accept 5% of the face value of the securities as his fee. When Tallman inquired as to whether "front money" — a deposit — would be forthcoming, Pomeranz noted that he assumed so but that the matter had not yet been determined.

At a subsequent meeting in Edwards' apartment, Edwards told Pomeranz that he had to be sure the stock was not counterfeit and, therefore, he and his contacts wanted to examine a sample. Accordingly, Pomeranz spoke to his wife, directed...