Cave v. United States
| Citation | 390 F.2d 58 |
| Decision Date | 22 March 1968 |
| Docket Number | and 18938.,No. 18859,18895,18859 |
| Parties | James Doyle CAVE, Appellant, v. UNITED STATES of America, Appellee. Sanford Samuel AMSTERDAM, Appellant, v. UNITED STATES of America, Appellee. Calvin Dennis SIRKIN, Appellant, v. UNITED STATES of America, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
James Lawyer, Des Moines, Iowa, for appellant Cave.
Theodore T. Duffield, Des Moines, Iowa, for appellants Amsterdam and Sirkin and filed brief; Anthony Critelli, Des Moines, Iowa, for appellant Sirkin was on the brief.
Jerry E. Williams, Asst. U. S. Atty., Des Moines, Iowa, for appellee; James P. Rielly, U. S. Atty. and Claude H. Freeman, Asst. U. S. Atty., were on the brief.
Before VAN OOSTERHOUT, Chief Judge, MATTHES, Circuit Judge, and HARRIS, Chief District Judge.
The appellants bring these appeals from convictions by a jury and judgments entered thereon finding them guilty upon each of two counts of an indictment. The Grand Jury of the Southern District of Iowa on May 26, 1966, returned a two count indictment against James Doyle Cave, Calvin Dennis Sirkin (also known as Harry Karl), and Sanford Samuel Amsterdam (also known as Jake Jackson) involving conspiracy and interstate transportation of property obtained by fraud. The cases were submitted on the original files and briefs.
Count I of the indictment charges conspiracy in violation of Title 18 U.S.C. § 371;1 Count II of the indictment charges interstate transportation of property obtained by fraud in violation of Title 18 U.S.C. § 2314.2 The indictment is rather lengthy and it appears unnecessary to restate it here as no question of its sufficiency is raised by appellants and pertinent provisions will be included in the statements summarizing the evidence.
Judgments of convictions were entered by the Honorable Roy L. Stephenson, Chief Judge, presiding. Calvin Dennis Sirkin (Harry Karl) and Sanford Samuel Amsterdam (Jake Jackson) were each sentenced on Count I to imprisonment for a period of five years and fined $10,000, and on Count II to imprisonment for a period of five years to run concurrently with the sentence imposed on Count I. James Doyle Cave was sentenced to imprisonment for a period of two years and fined $3,000 on Count I and on Count II to imprisonment for a period of two years to run concurrently with the sentence imposed on Count I.
Separate appeals have been taken. Appellant Cave files a separate brief. Appellants Amsterdam and Sirkin have filed their briefs jointly. All appeals will be disposed of in this opinion.
The three appellants contend that the court erred in failing to direct a judgment of acquittal for the reason that the Government failed to establish the jurisdictional value of $5,000. In addition thereto Appellant Cave contends (1) the evidence was insufficient to establish the allegations as to him; and (2) the Court erred in admitting testimony and exhibits which were hearsay, incompetent, irrelevant and immaterial as to him. However, at the close of the Government's case when Appellant Cave filed a written motion of his claims of error Appellants Amsterdam and Sirkin orally adopted Cave's formal motion in connection with their motion of acquittal at that time. We examine these claims and recite the facts applicable to each of them.
Except for one exhibit offered by defendant Cave, appellants failed to testify, or offer any evidence in their own defense, which is their right. Nevertheless, the testimony of the Government is uncontradicted, except as to any possible discrepancies in the testimony of matters relevant to the case.
In view of the nature of these cases and variance in the rule of law applicable thereto, a rather full and complete statement of the facts appears to be necessary.
The evidence discloses that in August, 1965, Pearl Michlin was the sole owner of an Iowa Corporation, Super Drug, Inc., a retail drug business located at 609 Walnut Street in Des Moines, Iowa. The drug store was actually operated by her husband, Harry Michlin, assisted by their son Franklin. Harry Michlin also was the owner of a drug store, King's Pharmacia in San Juan, Puerto Rico.
During the early part of the summer, 1965, the Michlins advertised the sale of Super Drug in the local newspapers and a well-known trade magazine. In July, 1965, Harry Michlin received a telephone call from Lew Farrell indicating an interest in the proposed sale and arranged a meeting for the purpose of discussing it.
A few days later Mr. Michlin joined Mr. Farrell at the Des Moines airport. Farrell had with him Allen Robert Rosenberg introduced to Michlin as Mr. Allen, and another man unnamed. Allen (Rosenberg), a large person, some six feet two inches or more tall, weighing 240 pounds, talked to Michlin about the sale of Super Drug. No commitment was made and no agreement for any further meeting.
On or about August 11, 1965, Mr. Allen called Mr. Michlin and asked that he meet him at the Des Moines airport. On arriving at the airport Michlin was introduced to a Mr. Harry Karl by Allen. It later developed and is admitted that Harry Karl is in fact Calvin Dennis Sirkin, one of the defendants herein.
Mr. Michlin took Mr. Allen (Rosenberg) and Mr. Sirkin (Harry Karl) to the Super Drug store. He showed Sirkin around the store and explained its operation. On inquiry from Allen, Michlin advised that the liabilities and the assets, including fixtures of the business were each about $25,000. Michlin asked $10,000 for the corporate stock on behalf of his wife. There was further discussion between Sirkin and Michlin at the store; Allen had left. After he returned, Allen and Michlin left Sirkin at the store and went to the home of Lew Farrell where an agreement was made to transfer all of the stock of Super Drug, Inc., to Harry Karl (Sirkin). Michlin and Allen returned to the store. They had an additional conference with Sirkin and all three agreed to the terms of the sale.
Sirkin thus obtained control of the assets of the corporation, which included the inventory, store fixtures and the corporation's bank account with a balance of some $1300.00. In return Sirkin was to issue to Mrs. Michlin two checks in the amount of $2,000 each on the Super Drug, Inc., bank account; one check postdated two weeks following the consummation of the sale and one postdated four weeks following the consummation of the sale. Michlin gave Sirkin a list of the liabilities of the corporation. He guaranteed its accuracy within ten percent. It was further agreed that if the liabilities exceeded those listed, plus ten percent, the excess would be deducted from the $4,000 to be paid for the stock in postdated checks.
In further consummation of the sale Mr. Michlin authorized his attorney to prepare the necessary papers and his son Franklin accompanied Sirkin to the Valley Bank & Trust Company where control of the bank account of the corporation was transferred to Harry Karl (Sirkin).
On returning to the drug store Harry Karl (Sirkin) issued two checks, each in the sum of $2,000 payable to Pearl Michlin on the Super Drug, Inc., account; one was dated August 19, 1965 and the other dated August 26, 1965. The arrangements for the transfer of the stock and the consummation of the sale were thus completed August 11, 1965. The ownership and operation of the drug store and all activities were thereafter carried on in the name of Harry Karl.
Before leaving for Puerto Rico on August 14 or 15, 1965, Harry Michlin introduced Sirkin as Harry Karl, the new owner of Super Drug, to Herbert Collins, the pharmacist. Collins was asked to remain as pharmacist of the store and agreed. At Michlin's suggestion another former employee, Larry Christensen, was employed by Karl on a part-time basis. Karl also employed Marie DeBrouse as cashier.
Under Karl's management of the drug store the stock of merchandise immediately went down. The employees noted that Karl failed to maintain the stock and inquired about it. Karl stated that Michlin had misled him regarding the liabilities of the business and as a consequence the store was short of cash. This concluded one phase of the sequence of events and began another.
On August 30, 1965, another individual, Sanford Samuel Amsterdam, one of the defendants herein, arrived at the drug store and was introduced to the employees by Harry Karl as Jake Jackson, the new bookkeeper. The office was located in the basement of the store. Amsterdam, known as Jake Jackson, went to the office where he spent most of his time. When employee Christensen arrived at the store that afternoon, Karl (Sirkin) took him to the basement and introduced him to Jake Jackson (Amsterdam) as "Jake" and advised that Jake was a partner in the business.
The next day, August 31, 1965, Karl told Marie DeBrouse that some big items would be coming to the drug store and when they arrived she was to notify Jake (Amsterdam) and that he would come up from the office and take care of them. Karl also advised her that if she had any problems, to take them up with Jake. There was a telephone in the basement office and it was from this office that Karl and Jake conducted most of their activities.
During the day, August 31, 1965, Elmer Harleen, a partner in Central TV Sales located in Des Moines, received a telephone call from a man who identified himself as Harry Karl, manager of Super Drug. He told him that he wanted a certain color television-phonograph combination for promotional purposes at his store. Harleen did not have this particular set but did have a comparable model. Karl placed an order for it and inquired as to the price. He was quoted a retail price of $975.00. The caller stated that he just wanted the set brought down and set on the floor; there would be no service or installation; and it would be a cash sale on delivery; with this representation a price of $875.00, plus sales tax, was agreed...
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