United States v. Solomon

• Decision Date: 09 April 1970
• Docket Number: No. 17005-17067.,17005-17067.
• Citation: 422 F.2d 1110
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nimrod SOLOMON and George Sommer, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

422 F.2d 1110 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Nimrod SOLOMON and George Sommer, Defendants-Appellants.

Nos. 17005-17067.

United States Court of Appeals, Seventh Circuit.

February 24, 1970.

Rehearing Denied April 9, 1970.

COPYRIGHT MATERIAL OMITTED

Warren D. Wolfson, Terence MacCarthy, Federal Defender Program, George Sommer, Chicago, Ill., for appellants.

Thomas A. Foran, U. S. Atty., Sheldon Davidson, Chicago, Ill., John Peter Lulinski, Michael B. Nash, Asst. U. S. Attys., of counsel, for appellee.

Before SWYGERT, CUMMINGS and KERNER, Circuit Judges.

Rehearing En Banc Denied April 9, 1970.

CUMMINGS, Circuit Judge.

Defendants Sommer and Solomon were named in a 2-count indictment along with Lew Farrell and Almer Linkon. Count I charged them with conspiracy to transport a forged check in interstate commerce in violation of 18 U.S.C. §§ 371 and 2314. Count II charged them with the substantive offense of transporting the forged check, prohibited by 18 U.S.C. § 2314. Farrell died before trial and Linkon was acquitted. Solomon and Sommer were found guilty on both counts after a trial before a jury. They each received sentences of five years on the conspiracy count. On the substantive count, Solomon was sentenced to a term of ten years and Sommer to five years, the sentences to run concurrently with the sentences imposed under Count I.

Defendant Solomon contends that the jury lacked sufficient evidence to establish his guilt beyond a reasonable doubt and that his conviction must therefore be set aside. In addition, both defendants claim that they were denied a fair trial because of the treatment of allegedly prejudicial newspaper publicity which appeared during the course of the trial and which, defendants claim, required a mistrial. Finally, defendant Solomon has also taken exception to the in camera presentation of a confidential government report and the trial judge's use of that report in consideration of bail pending appeal. We affirm.

Evidence as to Defendant Solomon

An integral element in the offense stated by 18 U.S.C. § 2314 is the existence of guilty intent or knowledge. Pauldino v. United States, 379 F.2d 170, 172 (10th Cir. 1967). The defendant must have knowledge that the check involved has been forged and fraudulently made. Barry v. United States, 109 U.S.App.D.C. 301, 287 F.2d 340, 341 (1961); United States v. Gardner, 171 F.2d 753, 759 (7th Cir. 1948). This element is also required where a conspiracy to violate Section 2314 is charged under 18 U.S.C. § 371. United States v. Gardner, supra, at pp. 758-759; cf. United States v. Ausmeier, 152 F.2d 349, 356 (2d Cir. 1945). Evidence of such knowledge may be inferred from the particular circumstances and acts and conduct of the parties (Jacobs v. United States, 395 F.2d 469, 472 (8th Cir. 1968)), but it must be clear and unequivocal. Direct Sales Co. v. United States, 319 U.S. 703, 711, 63 S.Ct. 1265, 87 L.Ed. 1674; cf. Miller v. United States, 382 F.2d 583, 587 (9th Cir. 1967). Defendant Solomon claims that the Government has failed to prove this element beyond a reasonable doubt. We are unable to agree.

The criminal activity charged to the defendants occurred against the background of a proposed business loan of $250,000 to Air and Space Manufacturing, Incorporated, an Indiana manufacturer of an aircraft called a "Gyroplane," which is comparable to a helicopter. This loan was being arranged by Fred G. Amick, president of the corporation, initially with Farrell and later with Alan Rosenberg, who died prior to the indictment but is named therein as a co-conspirator.

The evidence reveals that Solomon was well aquainted with codefendant Sommer and with Alan Rosenberg. Solomon was frequently in the company of Rosenberg and occasionally assisted him by running errands "and things like that." Solomon was clearly aware of the details of the proposed Indiana loan. He was present when a mortgage was discussed on September 5, 1966, by Rosenberg and Chicago attorney Cornelius Pitt en route to a Chicago airport where Rosenberg, Pitt and Sommer boarded a plane to Indiana in connection with the loan negotiations. On September 15, 1966, the day the forged check was given to Amick, Rosenberg introduced Solomon to Amick as "David George", and Solomon remained present throughout a Chicago restaurant discussion between Amick and Rosenberg concerning an increase in the initial advance on the loan from $50,000 to $52,500. When Rosenberg stated that he had to "see a man" since the loan was to be increased, he drove off alone with Solomon. After they returned, Solomon accompanied Rosenberg, Sommer and Amick to the Marina City Bank which Sommer entered. When he returned, he had a bank envelope containing the forged check which he passed to Rosenberg. Rosenberg opened the envelope and, after examining its contents, passed it to Amick, stating that it contained his money. Rosenberg then advised Amick not to cash the $52,500 check at the Marina City Bank and added that "this is Chicago. You can't carry that kind of money out of the bank." After spending two hours in their company, Solomon drove Sommer, Rosenberg and Amick to the airport where Sommer and Amick boarded a plane for Indiana.

His knowledge of the details of the loan transaction, his presence during the delivery of the check, and his use of an alias might create no more than grounds for suspicion of Solomon's complicity if considered alone. When considered in connection with the testimony of Jerome Miller, a convicted forger, the evidence shows that Solomon knew the illegal character of the check.

Miller testified that he first met Solomon in August 1965. A year later he again encountered Solomon in the company of Sommer in a Chicago restaurant. The next day Sommer introduced Miller to Rosenberg, and the four men later met again at Rosenberg's home in Skokie, Illinois. On September 12, 1966, Miller received a telephone call from Solomon who requested that he make up some checks, using a check protector possessed by Miller to perforate the amount on the center of the checks. Miller agreed and met Solomon later that morning in front of Miller's apartment building. While they walked through the neighborhood, Solomon handed Miller an envelope containing blank checks and a piece of paper with handwritten names and amounts to be put on the checks. Solomon stated that there was a total of 16 checks in the envelope, of which 14 were to be made up and two were extras to be used in case any were spoiled or otherwise to be given to Miller. When Solomon noticed a Plymouth, apparently containing police, the two men ran through a gangway and Miller placed the envelope containing the checks and paper under a doormat. After informing Solomon that he would contact him when the checks were prepared, Miller returned to his apartment. Miller later returned to recover the envelope and learned from the tenant of the apartment that it had been removed and the landlady had it.

The checks in the envelope strongly appear to have been connected with the scheme for which Solomon was indicted. Although Miller testified that he "believed" the top check in the envelope was a cashier's check on the Fletcher National Bank of Indiana, both women who recovered the checks from under the doormat testified that the checks were cashier's checks from the Marina City Bank. The same type of check from the same bank was ultimately forged and given to Amick no more than five days after this occurrence. In addition, after Miller had reported the loss of the checks, Solomon informed him that Rosenberg was upset with the loss and "that there were some people waiting in Indiana, a chartered plane was waiting, some people in Washington waiting for these checks, and they were going to be used to take over an aircraft plant." Solomon further indicated that the airplane plant was located in Indiana. Substantially the same information was again communicated to Miller by Solomon when the two met a day or two later and Miller offered to make up some additional checks if any were procured. Solomon was then looking for a check printer.

From this evidence the jury was entirely justified in concluding that Solomon knew and assisted in the forgery of the Marina City Bank's cashier's check which was given to Amick on September 16, 1966. There was ample evidence to connect the checks lost by Miller with the Air and Space Company scheme. From his participation in the events of September 12 and his later actions, the jury could reasonably have inferred that Solomon played a similar role in the subsequent procurement and forgery of the check passed to Amick. The use of the alias of "David George" and the mysterious excursion taken by Solomon and Rosenberg to "see a man" about altering the amount of the cashier's check to be transferred to Amick supports these inferences.

Solomon argues that Miller's testimony concerning the abortive plan to make up 14 checks on September 12 should not have been allowed into evidence. He contends that it involved a different crime from that charged in the indictment and merely inflamed the jury without shedding light on Solomon's mental state. As we have pointed out, the evidence of the occurrences of September 12, taken together with the remarks made by Solomon concerning the use to which the lost checks were to be put and the close proximity in time between the events of September 12 and the delivery of the forged check to Amick on September 16, strongly support the inference that the evidence all related to the charges of the indictment. As the district court judge noted,

"It is difficult to segregate the September 12 and 13 or 14 Miller-Solomon conversations with reference to this airplane plant in Indiana and the checks. You just can\'t separate it, * * * and for that reason * * * it should go in."

The indictment asserted that the conspiracy began in July 1966 and had as its purpose the obtaining from...