739 F.2d 702 (2nd Cir. 1984), 896, United States v. Johnpoll

Docket Nº:896, Docket 83-1335.
Citation:739 F.2d 702
Party Name:UNITED STATES of America, Appellee, v. Harvey JOHNPOLL, Defendant-Appellant.
Case Date:June 18, 1984
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 702

739 F.2d 702 (2nd Cir. 1984)

UNITED STATES of America, Appellee,

v.

Harvey JOHNPOLL, Defendant-Appellant.

No. 896, Docket 83-1335.

United States Court of Appeals, Second Circuit

June 18, 1984

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[Copyrighted Material Omitted]

        Submitted March 19, 1984.

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        Zane and Rudofsky, New York City (James B. Zane, Edward S. Rudofsky, Jay L.T. Breakstone, David H. Fromm, New York City, of counsel), for appellant.

        Rudolph W. Giuliani, U.S. Atty., for the S.D.N.Y., New York City (Patricia Anne Williams, Paul L. Shechtman, Asst. U.S. Attys., New York City, of counsel), for appellee.

        Before MANSFIELD, NEWMAN and PRATT, Circuit Judges.

        MANSFIELD, Circuit Judge.

        Harvey Johnpoll appeals from a judgment of conviction entered in the Southern District of New York by Judge Robert L. Carter on September 20, 1983, following a jury verdict finding him guilty of one count of conspiring to transport stolen securities and the proceeds from the sale of those securities in foreign commerce in violation of 18 U.S.C. Sec. 371 1 (Count One); three counts of transporting stolen securities in foreign commerce in violation of 18 U.S.C. Secs. 2 and 2314 2 (Counts Three through Five); and three counts of transporting the proceeds from the sale of those stolen securities in foreign commerce also in violation of 18 U.S.C. Secs. 2 and 2314 (Counts Ten through Twelve). 3 On September 20, 1983, Judge Carter sentenced Johnpoll to five (5) years imprisonment on the conspiracy count and ten (10) years on each of the six Sec. 2314 counts, with the ten-year sentences to run concurrently with each other but consecutively to the five-year sentence. Judge Carter also imposed a $70,000 fine: $10,000 for each of the seven counts on which Johnpoll was convicted.

        Johnpoll argues that the district court erred in (1) admitting into evidence the

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deposition testimony of certain Swiss witnesses because those depositions were taken in violation of Fed.R.Crim.P. 15 and violated his Sixth Amendment Confrontation Clause rights, (2) failing to follow required procedures in responding to inquiries from the jury during deliberations, (3) improperly instructing the jury with respect to the inference that could be drawn from his possession of stolen property, (4) failing to direct an acquittal on the ground that the evidence was insufficient to establish that the securities charged in the indictment were stolen, (5) denying him his right to a speedy trial under the Speedy Trial Act, 18 U.S.C. Secs. 3161, et seq., and the opportunity to make pretrial motions and to engage in discovery. Johnpoll further argues that the government fraudulently obtained the assistance of the Swiss government under the treaty for Mutual Assistance in Criminal Matters, May 25, 1973, United States-Switzerland, 27 U.S.T. 2019, T.I.A.S. 8302, in conducting its investigation and thereby denied him due process. Finally, Johnpoll contends that the indictment was multiplicitous in charging him in separate counts with unlawful transportation of stolen securities and proceeds from their sale.

        Except for the last of these contentions, we find no merit in Johnpoll's various arguments. Accordingly, we affirm his conviction on the conspiracy count (Count One) and the three counts of transporting stolen securities in foreign commerce (Counts Three through Five). We dismiss the other three counts charging unlawful transportation of the proceeds from the sale of the securities (Counts Ten through Twelve) and remand for resentencing in accord with our decision.

        The record, viewed as it must be in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), reveals the following. Sometime between March and August 1980, $9.6 million in securities mysteriously disappeared from the vault of Securities Settlement Corporation ("SSC"), a brokerage house in Manhattan. The loss was not detected until late August 1980. From SSC's records, an auditing firm determined precisely which securities were missing, and the auditors testified at trial that the securities had to have been stolen.

        Meanwhile, in July 1980, one Alexandra Kacenelenbogen contacted Remy Pfenniger, the president of Gestofinance, a Swiss import-export company, and offered to sell him $400,000 in American securities. Kacenelenbogen told Pfenniger that she was acting on behalf of Harvey Johnpoll, an American businessman who represented certain Italian planters. Pfenniger, who had a prior Swiss conviction for receiving stolen securities, feared that the securities might be stolen and declined the offer. Kacenelenbogen then took the securities to Gestofinance's Geneva offices, where she repeated the proposition to Jean Claude Genoud-Prachex, who worked for Pfenniger. Genoud-Prachex telephoned Johnpoll in New York; Johnpoll assured him that the securities were not stolen, explaining that he wanted to sell them through a Swiss company in order to avoid United States taxes. Following this conversation, Genoud-Prachex checked and determined that the securities had not been reported stolen and subsequently encouraged Pfenniger to pursue the deal. Pfenniger, still hesitant, telephoned Johnpoll and questioned him as to why he was not selling the securities through a bank. Johnpoll replied that he was fearful that a Swiss bank would report the sale. He offered Pfenniger 10% of the sale price if Gestofinance would serve as the intermediary and noted that he had an additional $6,000,000 in securities to sell through Pfenniger's company.

        On July 11, 1980, Pfenniger went to the Geneva office of Merrill Lynch, Pierce, Fenner & Smith ("Merrill Lynch"), taking the securities that Kacenelenbogen had left with Genoud-Prachex. He opened an account in the name of Gestofinance, requesting Merrill Lynch to determine whether the securities had been reported stolen and, if not, to resell them immediately. That day, Merrill Lynch sold the securities for a net

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price of $391,825. The securities were in SSC's name and were later determined to be part of the $9.6 million theft. These securities formed the basis of Count Two, the count upon which a mistrial was declared when the jury was unable to reach a verdict as to Johnpoll's guilt.

        Four days later, on July 15, 1980, Pfenniger transferred by wire $25,000 from Gestofinance's Swiss account to European-American Bank in Brooklyn for the account of Prieto International, Inc. ("Prieto"), a company wholly owned by Johnpoll. Five days later, Pfenniger and Kacenelenbogen flew to New York to meet with Johnpoll. Johnpoll reiterated that the securities belonged to Italian planters who wished to sell them through a Swiss intermediary in order to avoid taxes. Johnpoll and Pfenniger agreed that Pfenniger would receive a 2% commission on future sales. It was also agreed that future deliveries would be made by courier and that the courier would meet Pfenniger at the La Coupole cafe across the street from Merrill Lynch's Geneva office. Before leaving New York, Pfenniger gave Johnpoll $293,000 cash as part of the proceeds on the initial sale.

        Upon returning to Geneva, Pfenniger informed Susannah Maas, his attorney, about his negotiations with Johnpoll. Pfenniger asked Maas to assist them in avoiding Swiss taxes on the securities sales. Maas in turn set up a Liechtenstein corporation, Groclamare Anstalt ("Groclamare"), and opened an account at Merrill Lynch in Groclamare's name. Thereafter, on three separate occasions--July 31, August 14, and August 15--Johnpoll notified Pfenniger by telephone that a shipment of securities would be arriving in Geneva. All three deliveries were made at the La Coupole cafe by courier: $1,446,397 in securities on July 31; $1,813,759 in securities on August 14; and $2,364,247 in securities on August 15. Those three deliveries formed the basis of Counts Three through Five. On the occasion of each delivery, Pfenniger gave the securities to Maas who in turn deposited them in Groclamare's account at Merrill Lynch for sale. All of the securities were from the SSC theft. As soon as Merrill Lynch would sell the securities, Maas and Genoud-Prachex would withdraw the proceeds and deposit them into one of three Swiss bank accounts opened by Maas for the purpose of holding the money. Within a day of the deposit, Maas and Genoud would withdraw the funds in cash. By August 26, they had deposited and withdrawn $4,500,000 in cash from these three bank accounts.

        After the first courier delivery, Johnpoll flew to Geneva and took a room at a hotel. Shortly thereafter, Pfenniger and Genoud-Prachex brought Johnpoll $725,000 in cash that had been withdrawn by Maas and Genoud-Prachex from the Swiss bank accounts. At Johnpoll's direction, on August 8, Pfenniger transferred another $192,450 to three American bank accounts: $72,170 to Prieto's account at European-American Bank; $86,610 to Johnpoll's Fine Art to the Consumer ("FATTC") account at the same bank; and $33,670 to the "Coming Generation American Musical Theatre Corporation" account at Chemical Bank. The $86,610 transfer to Prieto's account formed the basis of Count Ten of the indictment. At the same time, Johnpoll deposited $50,000 into yet another Swiss bank account in the name of Cavar Anstalt, a shell corporation that Maas had created at Johnpoll's request. Later that day (August 8), Johnpoll returned to New York with Maas; at customs, Maas declared that she was bringing $350,000 in cash into the country. Once through customs, she gave the cash to Johnpoll.

        On August 15, after the sale of more stolen securities, Johnpoll telephoned Pfenniger with instructions to transmit a portion of the proceeds to New York. Pfenniger then transferred $73,159 to FATTC's account and...

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