Beyda v. United States

• Decision Date: 24 December 1963
• Docket Number: No. 18363.,18363.
• Parties: Bernard BEYDA and Robert Beyda, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

324 F.2d 526 (1963)

Bernard BEYDA and Robert Beyda, Appellants, v. UNITED STATES of America, Appellee.

No. 18363.

United States Court of Appeals Ninth Circuit.

November 15, 1963.

Rehearing Denied December 24, 1963.

Leo R. Friedman, San Francisco, Cal., for appellant.

Cecil F. Poole, U. S. Atty., and Jerrold M. Ladar, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before BARNES and MERRILL, Circuit Judges, and TAVARES, District Judge.

TAVARES, District Judge.

This is an appeal from a sentence and judgment upon conviction of violation of Title 18, U.S. Code, Section 659, possession of stolen property from a foreign shipment. Jurisdiction is invoked under Title 28, U.S.C., Sections 1291, 1294.

Twin brothers, Robert and Bernard Beyda, were charged in an indictment in two counts with possession of stolen property from foreign shipments. Count 1 concerned the purchase, on or about September 20, 1960, in San Francisco, of approximately 50 Hartman transistor radios which had been part of a shipment from Osaka, Japan, to Chicago, Illinois. Count 2 concerned the purchase, on or about July 20, 1961, in San Francisco, of approximately 100 Channel Master transistor radios shipped from Kobe, Japan, to San Francisco, California. Defendants at all stages were represented by retained counsel.

After a trial, jury waived, the District Court, on September 7, 1962, found both defendants guilty on both counts. A Motion for a New Trial in behalf of both defendants was filed within five days, on September 12th.¹

On October 19, 1962, there were filed in behalf of defendants, affidavits of defendant Bernard Beyda, and three others, seeking a new trial on the basis of allegedly newly discovered evidence. Although the record does not expressly state that the trial court ever ruled on the Motion for a New Trial, it is admitted by all parties in their briefs, that the Motion was denied on October 30, 1962.²

On October 30th each defendant was sentenced to two years in the custody of the Attorney General on each count of the indictment, the sentence on Count 1 to run concurrently with that on Count 2.

Bernard and Robert Beyda operated between 1960 and 1962 two discount stores,³ in the nine and ten hundred blocks of Market Street, San Francisco, California. The stores specialized in the sale at retail of all kinds of merchandise at discount prices.

The lower Court having found, jury waived, that the defendants were guilty, it is incumbent upon this Court to view the evidence and the inferences that may justifiably be drawn therefrom in the light most favorable to the government. U. S. v. Strickland, D.C., 205 F. Supp. 299; United States v. Berkley (C.A. 6) 288 F.2d 713.

Four errors are alleged on appeal:

The first alleged error is the refusal of the Court to admit into evidence testimony concerning a pair of binoculars, which testimony was stated to be offered to prove that the "suggested retail price means nothing." The defendants called one Joe E. Ellen as witness in an attempt to show that the suggested retail price of goods announced by a manufacturer is no indication of the proper or true retail price or value. Ellen operated a discount store on Market Street, San Francisco. However, we agree with the government (1) that an insufficient foundation was laid to indicate the competency, relevancy, and materiality of this evidence to suggested retail prices for the particular types of merchandise — radios — involved in this case, and (2) that no sufficient offer of proof was made by defendants. Moreover, upon the Court's stating in effect that it understood that in businesses of this type (discount houses) it was an elementary proposition that there was arms-length bargaining between the parties to get the best possible price, and that this was a matter of common acceptance, the proposed exhibit was withdrawn. On this record we can find no error in the Court's ruling rejecting the proffered testimony and insisting on confining the testimony to radios. We further find that the point was waived by voluntary withdrawal of the exhibit and witness by defense counsel.

The second alleged error was that there was insufficient evidence to support the verdict of the District Court that defendant Robert Beyda was in possession of the stolen property because it is claimed he had no ownership interest in the radios or in the store for which Bernard Beyda purchased the radios at the time of the purchase of the Hartman radios, which were the subject of Count 1 of the indictment, it being claimed that defendant Robert did not in any manner aid or abet Bernard in such purchases.

From our examination of the record it appears that the evidence as to Count 1 is not as strong against Robert Beyda as it is against both defendants with respect to Count 2, which was ample to sustain the conviction as to Count 2. This being the case, and since the sentences pronounced by the Court on both counts were to run concurrently, it would seem unnecessary to consider further any objections as to Count 1.⁴ However, we will nevertheless discuss such objections

Both Beydas testified that at the time of the Hartman transaction covered by Count 1, Robert was only an employee of Bernard. Hence it is claimed that possession by Robert was not proved. While it might be argued that there are circumstances, such as the close family and business relationship between these twin brothers, the admitted consultation of Bernard with Robert concerning this proposed purchase before Bernard closed the deal, Robert's expressed favorable opinion as to the deal's being a good one (Hartsin stated that Robert said, "We can't go wrong on that price."), the admitted partnership arrangement between both the brothers very shortly thereafter, covering this and another store in the next block, and other circumstances which could have justified an inference by the trial judge that Robert had more than a pure employee relationship to the business, we assume for the purpose of this phase of the case that such evidence was insufficient to prove such possession by Robert.

One result of this assumption is that such evidence would not be sufficient to justify invocation of the presumption of guilty knowledge of the stolen character of the goods from the mere possession of the recently stolen Hartman radios, a presumption, however, that fully applied to Bernard. However, insofar as such guilty knowledge is concerned, there was sufficient evidence from the testimony of Hartsin, the admitted presence and consultation of the Beyda brothers during the Hartman negotiations, and the surrounding circumstances, to support a finding by the Court, independently of such presumption, that Robert had such guilty knowledge. Among other things, Hartsin testified to the effect that he told both defendants that the Hartman radios were "warm," that if they would take care of Hartsin, he would take care of them, that they said he didn't have anything to worry about, and that he told them to be careful.

As to the necessity of proving the receipt or possession of the stolen goods, we believe that the evidence, including that above mentioned, was sufficient to justify a finding by the lower Court that, even if Robert was a mere employee, he aided and abetted his brother Bernard in the transaction, knowing that it was illegal, thereby making him a principal under 18 U.S.C. § 2(a). Moreover, the conflict between the testimony of the Beydas, on the one hand, and that of the government witnesses — even excluding that of Hartsin — coupled with the other evidence, was sufficiently great and material to aid in the inference of guilt, if the Court, as it evidently did, believed that the Beydas' testimony was false.

The third alleged error claims that there was insufficient evidence (as to both counts) to support the District Court's finding of guilty, in that allegedly the evidence did not warrant a finding that the defendants Bernard or Robert, or either of them, had knowledge of the stolen nature of the transistor radios under either count. What we have said previously concerning Robert as to Count 1, sufficiently disposes of the objection as to Bernard with respect to the same count, since Bernard did most or all of the talking with Hartsin in the Hartman transaction.

However, we again point out that even if the evidence was insufficient as to Count 1 with respect to Bernard, the concurrent nature of the sentences would make this immaterial if the evidence as to Count 2 was sufficient.

Count 2 relates to the Channel Master radios. The evidence is uncontradicted that, at the time of this transaction, Robert and Bernard were partners in the business which purchased these Channel Masters. Although the Beydas in court testified to the contrary, the government produced ample evidence through Hartsin, and two F.B.I. witnesses, to prove both possession and guilty knowledge on the part of both Beydas as to the Channel Masters. Hartsin testified that both brothers were present at the Channel Master transaction, although Bernard did most or all of the talking; that he told both brothers that...