Ahlstedt v. United States

• Decision Date: 22 April 1963
• Docket Number: No. 19556.,19556.
• Citation: 315 F.2d 62
• Parties: John G. AHLSTEDT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

315 F.2d 62 (1963)

John G. AHLSTEDT, Appellant, v. UNITED STATES of America, Appellee.

No. 19556.

United States Court of Appeals Fifth Circuit.

February 27, 1963.

Rehearing Denied April 22, 1963.

Thomas C. MacDonald, Jr., Tampa, Fla., for appellant.

Thomas J. Hanlon, III, Asst. U. S. Atty., Edward F. Boardman, U. S. Atty., Tampa, Fla., for appellee.

Before BROWN, GEWIN, and BELL, Circuit Judges.

GRIFFIN B. BELL, Circuit Judge.

This appeal is from a judgment of conviction entered on a jury verdict under a three count indictment.

The first count charged appellant, John Levay and Joseph P. Patrinostro with forging and causing to be forged the signatures of a referee and trustee in bankruptcy on a check in the amount of $2,750, and concurrring in the use of the forged signatures for the purpose of authenticating the check in violation of 18 U.S.C.A. §§ 2 and 505. The second count made the same charge with reference to a check in the amount of $96,977.66. The third count charged a violation of 18 U.S.C.A. §§ 2 and 656 in that appellant and Levay aided and abetted Patrinostro in embezzling and misapplying funds of his employer, International Bank of Tampa.

Appellant was tried alone although jointly indicted with Levay and Patrinostro. Levay had not been tried due to illness, and Patrinostro had entered a plea of guilty and was serving the sentence entered on the plea at the time of trial.

The evidence demonstrated, through the testimony of Patrinostro, that Levay and Patrinostro were acquainted, as were Levay and appellant. Patrinostro and appellant were not acquainted until they and Levay held a meeting at the home of Levay, at which time they were introduced by Levay The three of them formulated a plan to forge the signatures of the referee and trustee to checks so as to withdraw funds from the account of the trustee at the bank where Patrinostro was employed. He had selected the account as being fairly inactive. The former Mrs. Patrinostro was present at this meeting and on the trial testified that appellant looked like the man that she met there. Mrs. Levay was also present but neither she nor her husband testified.

Levay and Patrinostro met again in the home of Levay where Patrinostro forged the signatures on the two checks involved by tracing the bona fide signatures of the referee and trustee contained on a cancelled check withdrawn by him from the bank file. The forged checks were given to Levay. The proceeds of the check in the amount of $2,750 was to cover the expenses of appellant. However, Patrinostro admitted that he was paid $600 from the proceeds of it.

Appellant was to pose as Jon P. Gallager in passing the checks. Patrinostro in his strategic position of bookkeeper at the bank where he had the trustee account in charge would approve the checks presented by appellant in his role as Gallager.

The smaller check was presented to a teller at the bank by a man claiming to be Jon P. Gallager who identified himself by a Florida driver's license issued in that name. He was directed to have the check approved by the bookkeeper and it was approved by Patrinostro who testified that it was handed to him for approval by appellant. The teller then cashed it after concluding from a comparison that the endorsement was the same as the signature on the driver's license. She could not identify appellant. It had been some six years since the event transpired.

The larger check was taken to St. Petersburg for deposit in an account opened in the First National Bank of that city by Jon P. Gallager. He was told that he could not draw on the account for three days, and in the meantime the wrongdoing was discovered in the Tampa bank, though not the wrongdoers. Payment was stopped and no withdrawals were made in the St. Petersburg bank on the account. Gallager was positively identified as being appellant by the employee of the St. Petersburg bank who opened the account. She had occasion to see him again when he attempted to draw on the account. He was also identified as looking like appellant by the head teller from whom Gallager sought approval of a withdrawal on the account two days after it was opened.

William Andrew Irvin, a Federal prisoner, testified that he was in jail in Florida with appellant who disclosed to him in a general way his association with Levay and Patrinostro, and the forging and passing of the checks here involved.

The application of Gallager for the Florida driver's license was introduced. Under the Florida law obtaining in connection with new applications, the license number of the Florida resident who must accompany the applicant is listed. The number was 558415 and proof was offered to show this to be the number of the Florida license issued to John Levay for the year 1956. The proof was in the form of a State of Virginia traffic citation issued to Levay which in turn was sent to the Florida Highway Patrol by the State of Virginia, and which was produced from and offered by the custodian of the records of the Florida Highway Patrol. The custodian testified that it came from the file on Levay. It indicated that Levay was the holder of a Florida license bearing that number in 1956 and thus connected Levay and Gallager. The citation introduced was in the form of a photostat.

The Florida driver's license application of Jack Ahlstedt, a name used by appellant according to the evidence, was also introduced. It was not shown precisely that it was the application of appellant. Both this application and the Gallager application contained a description of the applicant and the jury thus had before it in this form such similarities as were reflected. The applicant in each case was a white male, with brown hair and brown eyes, six feet two inches in height and weighing two hundred pounds. The dissimilarities were that "Ahlstedt" was an electrician born September 9, 1909, while "Gallager" was an engineer born June 21, 1909.

In addition, a handwriting expert gave it as his opinion that the endorsements of Gallager on the two checks were made by the same person signing the application for a driver's license as Gallager.

The admission of the photostat of the Virginia traffic citation is assigned as error as having been both irrelevant and in violation of the best evidence rule. The admission of the driver's license application of Gallager is also assigned as error as not having been shown to be connected with appellant.

The other assignments of error have to do with a comment made by the trial court in the presence of the jury during the course of the trial, and because the trial court allegedly required counsel for appellant during the trial to expressly inform the jury that appellant would not testify.

These latter assignments of error are patently without merit. The comment by the court that: "Of course, his being here in court is evidence of something going wrong." had reference to Patrinostro and not appellant. Patrinostro was on the stand and this comment was made in a colloquoy with counsel for appellant. It did not give rise to the slightest objection, or even comment at the time and it is clear beyond peradventure that the statement was not in reference to appellant and in no way prejudiced him.

Nor did the trial court require counsel for appellant to expressly inform the jury that appellant would not testify. The jury was retired at the close of the government's case in order that counsel for appellant could argue a motion for acquittal....